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THE  LIBRARY 

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THE  UNIVERSITY 

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HANDBOOK 


OF 


ADMIRALTY  LAW 


BY 

ROBERT  M.  HUGHES,  M.A.,  LL.D. 

OF  THE  NORFOLK    V.O  BAR 


SECOND  EDITION 


ST.  PAUL,  MINN. 
WEST  PUBLISHING  CO. 

1920 


>4t  ^ 
\110 


Copyright,  1901 

BT 

WEST  PUBLISHING  CO. 


Copyright,  1920 

BY 

WEST  PUBLISHING  CO. 
(Hughes  Adm.2d  Ed.) 


This  volume  is  respectfully  dedicated  to 

HON.  NATHAN  GOFF 

A  genial  and  noble  man 
An  urbane,  upright,  and  able  judge 


58 


PREFACE  TO  THE  SECOND  EDITION 


The  main  object  had  in  mind  in  this  edition  has  been  to 
modernize  thoroughly  both  the  text  and  references,  in  or- 
der to  bring  the  treatise  up  to  date  and  to  show  the  great 
changes  in  admiralty  law  which  have  taken  place,  both  by 
statute  and  by  judicial  decision,  since  the  publication  of 
the  first  edition. 

On  account  of  these  changes,  much  of  the  first  edition 
has  become  obsolete,  and  discussion  of  questions  then  un- 
settled has  been  obviated  by  their  subsequent  settlement. 

It  is  not  claimed  as  a  feature  of  this  book  that  it  cites 
all  or  any  large  proportion  of  cases  on  a  given  subject. 
Nothing  is  more  laborious  or  difficult  than  the  selection 
of  the  references.  Frequently  the  two  or  three  cases  cited 
in  a  footnote  are  the  survivors  of  a  dozen  or  more  that  had 
to  be  examined  or  weighed.  The  rank  of  the  court,  the 
reputation  of  the  judge,  the  reasoning  and  style,  all  must 
be  considered  and  balanced.  Printing  an  opinion  may  ren- 
der it  more  accessible,  but  does  not  add  to  its  value.  There 
is  no  alchemv  in  print  to  transform  a  baser  metal  into  gold. 

This  edition  has  had  the  general  practitioner  in  view 
rather  more  than  the  first  edition,  which  was  largely  in- 
tended as  a  text-book  for  law  schools. 

The  Table  of  Illustrative  Cases  contained  in  the  first  edi- 
tion has  been  omitted,  but  many  leading  cases  are  printed  in 
capitals  throughout  the  text  as  a  means  of  directing  special 
attention  to  them. 

Though  it  is  impossible  to  make  the  paging  of  the  new 
edition  conform  to  the  old,  it  has  been  found  feasible  to 
preserve  the  original  numbering  of  the  black-letter  sections. 

(vii) 


VU1  PREFACE 

This  will  facilitate  referring  from  one  edition  to  the  other — 
a  matter  of  some  importance,  as  the  courts  have  frequently 
done  the  author  the  honor  of  citing  the  work. 

The  author  desires  to  make  special  acknowledgment  to 
Professor  George  B.  Eager,  Jr.,  of  the  University  of  Vir- 
ginia, for  valuable  suggestions,  and  to  the  publishers  for 
their  readiness  at  all  times  to  aid  with  all  descriptions  of 
labor-saving  devices. 

Norfolk,  Virginia, 
January  12,   1020. 


PREFACE  TO  THE  FIRST  EDITION 


The  germ  of  this  treatise  is  a  series  of  lectures  on  admiral- 
ty law,  which  the  author  has  been  giving  to  the  senior  law 
class  at  Washington  and  Lee  University  for  the  past  few 
years.  His  experience  there  has  emphasized  the  need  of 
a  text-book  on  marine  law.  Probably  the  lack  of  such  a 
text-book  is  the  explanation  of  the  scant  attention  given  to 
the  subject  in  the  law  schools;  but  its  constantly  increasing 
importance  seems  now  to  demand  more  elaborate  treat- 
ment than  it  has  heretofore  received.  This  is  especially 
true  in  view  of  the  recent  important  legislation  bearing  up- 
on the  subject,  and  its  intimate  connection  with  many  oth- 
er topics  which  are  usually  treated  more  fully,  such  as  the 
law  of  carriers  and  the  general  substantive  law  in  relation 
both  to  contracts  and  to  torts.  To  meet  the  need  of  such 
a  text-book,  this  treatise  has  been  prepared.  It  is  intended 
to  be  elementary,  and  is  so  arranged  that  those  schools 
which  give  but  slight  attention  to  the  subject  of  admiral- 
ty can  use  it  by  omitting  certain  chapters,  and  those  which 
desire  to  give  it  more  emphasis  can  supplement  the  text 
by  the  use  of  the  table  of  leading  cases,  which  are  printed 
in  large  capitals  throughout  the  book,  and  for  which  a  spe- 
cial index  has  been  prepared,  giving  an  outline  of  the  points 
passed  upon  by  them. 

The  author  hopes,  also,  that  the  book  will  be  found  use- 
ful to  the  very  large  class  of  general  practitioners  who  wish 
to  be  in  position  to  answer  ordinary  routine  questions  of 
admiralty  law  arising  in  practice.  The  failure  of  the  law 
schools  to  treat  this  subject  at  any  length  results  in  the 
failure  of  the  young  bar  generally  to  know  anything  about 

(ix) 


X  PREFACE 

it  when  they  first  commence  to  practice.  It  is  hoped  that 
this  book  will  enable  them  to  acquire  a  bird's-eye  view  of 
the  -abject  during  those  leisure  hours  which  usually  fall 
heavily  upon  the  younger  practitioner,  and  that  it  will  also 
enable  the  more  experienced  general  practitioners  who  do 
not  make  a  specialty  of  admiralty  to  advise,  at  least  on  cur- 
rent questions,  without  the  necessity  of  consulting  a  spe- 
cialist. 

In  view  of  the  elementary  character  of  the  work,  the  au- 
thor cannot  hope  that  the  specialist  in  admiralty  will  find 
anything  novel  in  his  treatment  of  the  subject,  unless,  per- 
haps, in  one  or  two  chapters  where  the  law  is  not  yet  crys- 
tallized into  very  definite  shape, — such  as  the  chapter  on 
death  injuries  and  the  chapter  on  the  subject  of  damages, — 
and  where  the  author's  views  may  be  of  interest.  At  the 
same  time,  it  is  believed  that  the  insertion  in  the  appendix 
or  in  the  main  text  of  practically  all  the  statutes  which  the 
admiralty  practitioner  usually  needs  will  make  it  a  useful 
vade  mecum,  obviating  the  necessity  of  handling,  either  in 
the  office  or  at  court,  the  cumbrous  volumes  in  which  these 
statutes  are  found.  A  list  of  the  acts  printed  in  full  will  be 
found  in  the  index  under  the  title  "Statutes." 

The  author  begs  leave  to  express  his  acknowledgments 
to  man}'  friends  for  suggestions  and  aid.  He  also  wishes  to 
acknowledge  publicly  the  numerous  courtesies  received  at 
the  hand  of  the  publishers. 


TABLE  OF  CONTENTS 


CHAPTER  I 

OF  THE   ORIGIN   AND   HISTORY    OF   THE   ADMIRALTY  AND 
ITS  EXTENT  IN  THE  UNITED  STATES 

Section  Page 

1.  Origin  and  History 1-4 

2.  The  Admiralty  Classics 4-8 

3.  The  Colonial  Admiralty  Jurisdiction,  and  Constitu- 

tional  grant   ot   "Admiralty  and   Maritime   Ju- 
risdiction"       9-10 

4.  The  Waters  Included 10-13 

5.  The   Craft   Included 14-17 


CHAPTER  II 

OF  THE  ADMIRALTY  JURISDICTION  AS  GOVERNED  BY  THE 
SUBJECT-MATTER 

6.  Cases  in  Contract  and  Cases  in  Tort 18-22 

7.  Tests  of  Jurisdiction 18-22 

8-10.     Contracts   of  Seamen 23-28 

11.     Master's  Right  to  Proceed  in  Rem  for  his  Wages.  .  2.8-31 

12-19.     Pilotage  ^1-10 


CHAPTER  III 
OF  GENERAL  AVERAGE  AND  MARINE  INSURANCE 

20.  "General  Average"  Defined 41-44 

21.  Requisites  of  General  Average 44-50 

22.  "Marine  Insurance"  Defined 51-52 

23.  Maritime  Character  of  Contracts 51-52 

24.  Insurable   Interest 52-54 

25.  Conditions  in   Contracts  of  Insurance 55-59 

26.  Misrepresentation  and  Concealment 55-59 

Hughes. Adm.  (2o  Ed.)         (xi) 


Xll  TABLE    OF    CONTENTS 

Section  Page 

27.  Seaworthiness    59-64 

28.  Deviation    64-67 

29.  Illegal    Traffic 67-71 

30.  The  Policy  and  Its  Provisions  as  to  Risk  and  Perils 

Insured    Against 71-75 

31.  Perils  of  the  Seas 75-77 

32.  Barratry    77-78 

33.  Thefts 78 

34.  All  Other  Teiils 79-80 

35.  Proximate  Cause  of  Loss 80-83 

36.  The  Loss— Total  or  Partial 83-87 

37.  Actual   or   Constructive 83-87 

38.  Abandonment   87-88 

39.  Agreed  Valuation 88-91 

40.  Subrogation  of  Insurer 91-92 

41.  Suing  and  Laboring  Clause 92-93 


CHAPTER  IV 

OF  BOTTOMRY  AND  RESPONDENTIA;    AND  LIENS  FOR  SUP- 
PLIES,  REPAIRS,  AND  OTHER  NECESSARIES 

42.  "Bottomry"  Defined 94-96 

43.  Requisites  of  Bottomry  Bond 96-97 

44.  Respondentia    97-98 

45.  Supplies,  Repairs,  and  Other  Necessaries 98-101 

46.  "Materialman"'  Defined 98-101 

47.  Necessaries  Furnished  in  Foreign  Ports 101-107 

48.  "Necessaries"  Defined 107-110 

49.  Necessaries  Furnished  Domestic  Vessels 110-115 

50.  Domestic  Liens  as  Atfected  by  Owner's  Pres- 

ence    115-116 

51.  Shipbuilding  Contracts 116-117 

52.  Vessels  Affected  by  State  Statutes 118 


CHAPTER  V 

OF  STEVEDORES'  CONTRACTS,  CANAL  TOLLS,  AND  TOWAGE 

CONTRACTS 

53.  Stevedores'  Contracts — "Stevedore"  Defined 119-121 

54.  Maritime  <  Jharacter  of  Contracts,  and  Liens  on 

Foreign  and  I  >omestic  Vessels 119-121 

",.  Privity  of  Contract  Necessary  to  Lien 122-123 

56.    Canal    Tolls 123 


TABLE   OF   CONTENTS  Xlll 

Section  Pafe 

57.    Towage — "Service"  Defined 124-125 

58-59.  Responsibility  as  Between  Tug  and  Tow 125-129 

60.  Degree  of  Care  Required  of  Tug 129-130 

61.  For  Whose  Acts  Tug  or  Tow  Liable 131 


CHAPTER  VI 

OF  SALVAGE 

62.  Nature  and  Grounds 132-134 

63.  "Salvage"  Defined— Elements  of  Service 134-141 

64.  The  Award — Amount  in  General 142 

65.  Elements  of  Compensation  and  Bounty 142-145 

66.  Incidents  of  the  Service 146-149 

67.  Salvage   Contracts 149-150 

68.  Salvage  Apportionment 150-151 

69.  Salvage  Chargeable  as  between  Ship  and  Cargo...  152-153 


CHAPTER  VII 

OF  CONTRACTS  OF  AFFREIGHTMENT  AND  CHARTER 
PARTIES 

70-72.     "Contracts  of  Affreightment"  Defined,  and  Distin- 
guished from  Charter  Parties 154-155 

73.  Warranties  Implied  in  Contracts  of  Affreightment 

against  Unseaworthiness  and  Deviation 155-156 

74.  Mutual  Remedies  of  Ship  and  Cargo  on  Contracts 

of  Affreightment 156-157 

75.  Entirety  of  Affreightment  Contract 158 

76.  Apportionment  of  Freight 159-160 

77-78.     Ship  as  Common  Carrier 160-161 

79.  Bill  of  Lading — Making  and  Form  in  General 161-162 

80.  Negotiability    162-163 

81.  Exceptions  in   General 163-164 

82.  Exception  of  Perils  of  the  Sea 165-166 

83.  "Charter  Parties"  Defined 166-16S 

S4.     Construction  of  Charter  Parties 168-171 

85.  Conditions    Implied    in    Charter    Parties    of    Sea- 

worthiness and  against  Deviation 171-173 

86.  Cancellation  Clause  in  Charter  Parties 174-175 

87.  Loading  Under  Charter  Parties 175-176 

88.  Execution  of  Necessary  Documents  under  Charter 

Parties    177-178 

89.  Cesser  Clause  in  Charter  Parties 178-179 


XiV  TABLE    OF    CONTENTS 


CHAPTER  VIII 

OF  WATER  CARRIAGE  AS  AFFECTED  BY  THE  HARTER  ACT 
OF  FEBRUARY  13,  1893  (27  Stat.  445  [U.  S.  Comp.  St. 

§§  8029-8035])  Paee 

Section  ^aSe 

90-91.     Policy  of  Act 180-183 

92.  Act  Applicable  Only  between   Vessel  Owner  and 

Shipper    183-187 

93.  Vessels  and  Voyages  to  which  Act  is  Applicable..    187-188 

94.  Relative  Measure  of  Obligation  as  to  Handling  the 

Cargo  and  Handling  the  Ship 188-19:5 

95.  Necessity  of   Stipulation  to  Reduce   Liability   for 

Unseaworthiness    193-194 


CHAPTER  IX 

OF  ADMIRALTY  JURISDICTION  IN  MATTERS   OF  TORT 

96-97.     The    Waters    Included,    and   Wharves,   Piers,   and 

Bridges 195-199 

98.  Torts,    to    be    Marine,    must    be    Consummate    on 

Water    199-201 

99.  Torts  may  he  .Marine  though  Primal  Cause  on  Land  201-202 

100.  Detached  St  ructures  in  Navigable  Waters 202-20:: 

101.  Torts  Arising  from  Relation  of  Crew  to  Vessel  or 

( )wner    204-20!t 

102.  Personal   Torts   Arising  from   Relation  of  Passen- 

gers to  Vessel 209-210 

103.  Obligations  to   Persons   Rightfully  on  Vessel,  but 

Bearing  no  Relation  to  It 210-212 

104.  Liability  as  between  Vessel  and  Independent  Con- 

tractor      213-214 

105.  Doctrine  of  Imputed  Negligence 214-215 

Km;.      Miscellaneous   Marine   Torts 215-220 

107.    Doctrine  of  Contributory  Negligence 221 

CHAPTER  X 

OF  Till:   RIGHT  OF  ACTION    IN    ADMIRALTY    FOR   INJURIES 
RESULTING  FATALLY 

LOS.     Survival  of  Action  for  injuries  Resulting  in  Death 

— The  Genera]  Common-Law  Doctrine 222-2i'7 

LOG.  The  Civil-Law  Doctrine 2^2-227 

110.  The   Continental    Doctrine 222-227 


Section 


TABLE   OF   CONTENTS  XV 

Page 
227 


111.  The  English  Doctrine  as  to  Survival  in  Admiralty 

112.  The  American  Doctrine  as  to  Survival  in  Admir- 

alty—Independent of  Statute 228-230 

113.  Under  State  Statutes 230-236 

114.  Under  Congressional  Statutes 236-241 

115.  The  Law  Governing 242-243 

116.  Effect  of  Contributory  Negligence 243-244 

117.  Construction  of  Particular  Statutes 244 


CHAPTER  XI 
OF  TORTS  TO  THE  PROPERTY,  AND  HEREIN'  OF  COLLISION 

118.  Rules  for  Preventing  Collisions,  the  Different  Sys- 

tems, and  the  Localities  where  They  Apply-  •  ■  •  245-250 

119.  Preliminary    Definitions 250-251 

120.  Distinctive  Eights  Prescribed  for  Different  Vessels  251-258 

121.  Sound  Signals  in  Obscured  Weather 25S-261 

122.  Speed  in  Obscured  Weather 262-264 

123.  Precautions  when  Approaching  Fog  Bank 265 

124.  Steering  and  Sailing  Rules  in  Obscured  Weather..  265-267 

CHAPTER  XII 

THE  STEERING  AND  SAILING  RULES 

125-127.     Origin,  Reasons  on  Which  Based,  and  General  Ap- 
plication        26S-270 

128.  Sail  Vessels 270-273 

129.  Steamers— The   Port-Helm    Rule 273-277 

130.  The   Crossing    Rule 277-278 

131.  Steam  and  Sail 278-281 

132.  Privileged    Vessels 281-283 

133.  Crossing  Ahead 283 

134.  The  Stop  and  Back  Rule 284-286 

135.  Overtaking    Vessels 286-287 

CHAPTER  XIII 

RULES  AS  TO  NARROW  CHANNELS,  SPECIAL  CIRCUMSTANC- 
ES, AND  GENERAL  PRECAUTIONS 

136.  The   Narrow   Channel    Rule 288-291 

137.  The  General  Prudential  Rule,  or  Special  Circum- 

stance   Rule 291-295 

138.  Sound    Signals 296 


XVI  TABLE    OF    CONTENTS 

Section  Pa8* 

139.  The  General  Precaution   Rule 296 

140.  Lookouts    ♦ 296-299 

141.  Anchored  Vessels 299-303 

142.  Wrecks    303-304 

143.  The   Stand-by   Act 305-307 


CHAPTER  XIV 
OF  DAMAGES  IN  COLLISION  CASES 

144.  Recovery  Based  on  Negligence 30S-309 

145.  Inevitable  Accident  or  Inscrutable  Fault 309-312 

146.  One  Solely  in  Fault 312 

147.  Both  in  Fault 312-318 

148.  Rights  of  Third  Party  where  Both  in  Fault 318-319 

149.  Contribution   between   Colliding  Vessels — Enforce- 

ment in  Suit  against  Both 320 

150.  Enforcement  by  Bringing  in  Vessel  not  Party 

to    Suit 320-321 

151.  Enforcement  by  Independent  Suit 321-326 

152.  Measure  of  Damages 326 

153.  When   Loss   Total 326-327 

154.  When    Loss    Partial 328-330 

155.  Remoteness  of  Damages — Subsequent  Storm 330-331 

156.  Doctrine  of  Error  in  Extremis 331-332 

CHAPTER  XV 

OF   VESSEL   OWNERSHIP   INDEPENDENT   OF   THE   LIMITED 
LIABILITY  ACT 

157.  Method  by  Which  Title  t  j  Vessels  may  be  Acquir- 

ed   or   Transferred 333-336 

158.  Relation  of  Vessel  <  hvners  Inter  Sese 336-340 

159.  Relation  of  Vessel  Owners  as  Respects  Third  Par- 

ties      341-344 


CHAPTER  XVI 

OF    THE    RIGHTS    AND    LIABILITIES    OF    OWNERS    AS    AF- 
FECTED BY  THE  LIMITED  LIABILITY  ACT 

160.  History  of  Limitation  of  Liability  in  General 345-346 

161.  History  and  Policy  of  Federal  Legislation 346-354 

162.  By  Whom  Limitation  of  Liability  may  be  Claimed  354 


TABLE   OF   CONTENTS  XV11 

Section  Page 

1G3.    Against     what     Liabilities     Limitation     may    be 

Claimed    355-357 

164.  Privity  or  Knowledge  of  Owner 357-364 

165.  The  Voyage  as  the  Unit 364-365 

166.  Extent  of  Liability  of  Part  Owners 365 

167.  Measure  of  Liability — Time  of  Estimating  Values  365-366 

168.  Prior    Liens 366-368 

169.  Damages  Recovered  from  Other  Vessel 369-371 

170.  Freight    371 

171.  Salvage  and  Insurance 372-373 

172.  Procedure — Time  for  Taking  Advantage  of  Statute  373-374 

173.  Defense  to  Suit  against  Owner,  or  Independent 

Proceeding  374-375 

174.  Method  of  Distribution 375 


CHAPTER  XVII 

OF   THE    RELATIVE    PRIORITIES    OF    MARITIME    LIENS    AS 

AMONG  EACH  OTHER  AND  ALSO  AS  BETWEEN  THEM 

AND  NONMARITIME  LIENS  OR  TITLES 

175.  Relative  Rank  as  Affected  by  Nature  of  Claims. .  376-377 

176-177.  Contract  Liens  in  General ^     377 

178.  Seamen's    Wages 378-380 

179.  Salvage    380-382 

180.  Materials,  Supplies,  Advances,  Towage,  Pilot- 

age, and  General  Average 382-384 

181.  Bottomry     384  386 

182.  Nonmaritime  Liens  and  Titles 3S6 

153.  Tort    Liens 387-391 

154.  Relative  Rank   as  Affected  by  Date  of  Vesting — 

Among  Liens  of  Same  Character .".91-393 

155.  Among  Liens  of  Different  Character 393-394 

186.  Between  Contract  and  Tort  Liens 394 

1S7.  As  between  Tort  Liens 394-397 

1SS.    Relative  Rank  as  Affected  by  Suit  or  Decree 397-398 


CHAPTER  XVIII 
A  SUMMARY  OF  PLEADING  AND  PRACTICE 

189.  Simplicity  of  Admiralty  Procedure 399-400 

190.  Proceedings  in  Rem  and  in  Personam 400-403 

191.  The  Admiralty  Rules  of  Practice 403 

192.  The  Libel     403-405 

Hughes, Adm.  (2d  Ed.)— b 


XV111  TABLE   OF   CONTENTS 

Section  Page 

1 93.  Amendments    405 

194.  The  Process    406-408 

195.  Decrees  by  Default 408  409 

L96.     The  Defense    409-410 

197.  The  Trial 410-411 

198.  Evidence    411 

199.  Attachments  in  Admiralty 412 

200.  Set-Off    412 

201.  Limitations     413 

202.  Tender   413 

20:;.     Costs     414 

2(»4.     Enforcing  Decrees    414-415 

205.  The   Fifty-Ninth    Rule 415 

206.  The  Courts  having  Admiralty  Jurisdiction 415-41S 

207.  The   Process  of  Appeal 418 

208.  Questions  of  Fact  on  Appeal 419-420 

209.  New  Evidence    420-422 


APPENDIX 

1.  The  Mariner's  Compass 424 

2.  The  Salvage  Act  of  August  1,  1912 425-426 

3.  Statutes  Regulating  Navigation,  Including: 

(1)  The   International   Rules 426-445 

(2)  The    Rules    for    Coast    and    Connecting    Inland 

Waters    445-461 

(3)  Lines  between  International  and  Inland  Rules...  462-468 

(4)  The  Lake  Rules 468-479 

(5)  The  Mississippi  Valley  Rules 479-4S8 

(6)  The  Act  of  March  3,  1899,  as  to  Obstructing  Chan- 

nels      4S9-493 

(7)  The  Stand-By  Act  of  September  4,  1890 493-494 

4.  The  Limited  Liability  Acts  Including: 

(1)  The  Act  of  Mar.h  3,  1851,  as  Amended 494-496 

(2)  The  Act  of  June  26,  1884 497 

5.  Section  941,  Rev.  St.,  as  Amended,  Regulating  Release  of 

Vessels  from  Arrest,  on  Bond  or  Stipulation 497-49S 

6.  Statutes  Regulating  Evidence  in  the  Federal  Courts 498-504 

7.  The  Bandwriting  Act  of  February  20,  1913 504 

8.  Suits  in  Forma   Pauperis 505 

0.     Certain   Admiralty   Suits  against  the  United  States..  50&-51J 

10.     The  Admiralty  Rules  of  Practice 511-J31 

t 


HANDBOOK 


OF 


ADMIRALTY   LAW 

SECOND  EDITION 


CHAPTER  I 

OF  THE   ORIGIN   AND  HISTORY   OF  THE   ADMIRALTY   AND 
ITS  EXTENT  IN  THE  UNITED  STATES 

1.  Origin  and  History. 

2.  The  Admiralty  Classics. 

3.  The  Colonial  Admiralty  Jurisdiction,  and  Constitutional  Grant  of 

"Admiralty  and  Maritime  Jurisdiction." 

4.  The  Waters  Included. 

5.  The  Craft  Included. 


ORIGIN  AND  HISTORY 

1.  The  admiralty  law  originated  in  the  needs  of  commerce 
and  the  custom  and  usage  of  merchants. 

In  the  dawn  of  recorded  story,  when  mythology  and  his- 
tory were  too  intermingled  to  separate  the  legendary  from 
the  authentic,  commerce  by  means  of  ships  was  drawing 
the  nations  together,  and  beginning  to  break  down  the  bar- 
riers of  prejudice  and  hostility  due  to  the  difficulty  and  dan- 
ger of  land  communication.  The  voyage  of  the  Argonauts. 
the  Trojan  Expedition,  the  wanderings  of  Odysseus, 
though  military  in  the  songs  of  Homer,  were  probably  as 
Hughes, Adm.  (2d  Ed.) — 1 


2  ORIGIN    AND   HISTORY   OF    THE    ADMIRALTY  (Ch.  1 

much  for  exploration  as  for  conquest ;  merchants  and 
warriors  were  combined  in  one  person  of  necessity.  The 
enterprising  Rhodians  had  not  only  a  commerce,  but  a 
Code,  in  which  is  found  the  germ  of  the  law  of  general 
average.  The  Phoenician  traders  were  carriers  for  the 
wise  Solomon,  and  planted  trading  colonies  throughout 
the  Mediterranean.  Their  Carthagenian  descendants  were 
worthy  successors.  Until  Rome  copied  their  trireme,  her 
domain  was  limited  to  Italy.  When  maritime  skill  supple- 
mented military  prowess,  and  placed  at  her  command  new 
and  easier  lines  of  advance,  she  overran  the  world.  The 
mart  followed  the  camp ;  for  it  is  a  teaching  of  history  that 
in  the  providence  of  God  the  havoc  of  war  opens  new  ave- 
nues for  the  arts  of  peace. 

In  the  Middle  Ages  the  Italian  republics  became,  the  car- 
riers of  the  world,  and  reached  a  high  plane  of  enlighten- 
ment. The  Saracen  civilization  could  compare  favorably 
with  that  of  the  West;  and  the  Italians,  in  their  constant 
warfare  against  Mohammedanism,  acquired  and  assimilat- 
ed this  civilization,  and  spread  it  over  Europe.  Venice, 
Florence,  Pisa,  and  Genoa  furnished  the  mariners  who  scat- 
tered the  gloom  of  the  Dark  Ages;  who  civilized  the  old 
world,  and  discovered  the  new. 

The  Conflict  between  the  English  Common  Lazv  and  Ad- 
miralty Courts 
The  student  who  observes  the  present  commerce  and 
maritime  power  of  England  finds  it  hard  to  realize  how  re- 
cent is  its  development.  Yet  our  English  ancestors  were 
not  by  nature  addicted  to  maritime  enterprise.  The  Anglo- 
Saxon  loved  the  quiet  recesses  of  the  forest,  and  was  re- 
luctant to  venture  on  the  water.  He  could  not  be  made  to 
understand  that  his  only  security  against  the  Danes,  who 
harried  the  British  coast,  was  to  meet  them  at  sea.  The 
naval  victory  of  Alfred  was  sporadic,  and  the  sea  power  of 
the  Danes  enabled  them  to  overrun  and  conquer  England. 
Even  the  Danish  conquest  did  not  infuse  sufficient  mari- 


§  1)  ORIGIN   AND   HISTORY  3 

time  blood  to  overcome  the  Saxon  propensity  to  remain  on 
terra  firma.  During-  many  months  William  the  Conquer- 
or was  engaged  in  fitting  out  his  fleet  and  army  in  sight  of 
their  coast,  yet  no  effort  was  made  to  harass  him  on  the 
voyage,  or  resist  his  landing.  It  is  difficult  to  understand 
that  the  vanquished  of  Hastings  and  the  victors  of  the 
Hogue  were  of  the  same  nation. 

The  Norman  conquerors  added  a  sea-faring  strain  to 
Anglo-Saxon  blood,  and  the  subsequent  wars  with  France 
developed  to  some  extent  a  taste  for  the  sea ;  but,  despite 
the  trade  with  the  Baltic  nations,  the  Mediterranean  re- 
mained the  great  center  of  world  commerce.  The  discov- 
ery of  America  directed  the  gaze  of  navigators  beyond  the 
Pillars  of  Hercules  and  made  their  aspirations  worldwide. 

Prior  to  the  reign  of  Elizabeth,  many  continental  nations 
surpassed  England  in  maritime  enterprise.  Such  were  the 
Spaniards,  Portuguese,  Dutch,  and  even  the  French.  She 
it  was  who  first  grasped  England's  true  policy,  and  the 
age  of  Bacon  and  Shakespeare  in  letters  was  the  age  of 
Drake  and  Frobisher  and  Raleigh  in  navigation.  The  dis- 
graceful reign  of  her  successor,  James  I.,  brought  about  a 
partial  reaction.  Lord  Coke,  the  apostle  of  the  common 
law,  was  the  leader  in  the  attack  on  the  admiralty,  is- 
suing prohibitions  to  its  courts,  and  in  every  way  curtailing 
its  jurisdiction.  His  persecution  of  Raleigh,  the  great  nav- 
igator, was  the  personification  of  his  hatred  for  the  new 
order  of  things. 

In  consequence  of  this  common-law  hostility,  English 
commerce  was  long  retarded,  just  as  was  the  jurisdiction 
of  the  English  admiralty.  The  reigns  of  the  Stuarts  up  to 
the  English  commonwealth  were  noteworthy  for  a  tenden- 
cy to  cultivate  friendly  relations  with  Spain,  thus  checking 
the  enterprise  of  the  great  sea  captains  who  had  long  made 
relentless  war  against  her.  Charles  II.  and  James  II.  were 
more  subservient  to  France  than  their  ancestors  had  been 
to  Spain,  so  that  the  steady  growth  of  English  commerce 
hardly  antedates  the  eighteenth  century. 


4  ORIGIN  AND   HISTORY   OF    THE   ADMIRALTY  (Ch.  1 

Meanwhile  the  common-law  judges  had  put  fetters  upon 
the  marine  law  of  England  which  could  not  be  so  easily 
cast  off.  Anything  continental  or  international  in  origin 
met  their  determined  resistance.  It  was  long  before  the 
English  courts  were  willing  even  to  admit  that  the  law  and 
custom  of  merchants,  to  which  England  owes  its  greatness 
of  to-day,  was  a  part  of  English  law ;  or  that  it  was  more 
than  a  special  custom,  necessary  to  be  proved  in  each  case. 
In  consequence  of  this  sentiment,  the  English  admiralty 
jurisdiction  at  the  time  of  the  American  Revolution  was 
much  restricted,  being  narrower  than  the  continental  ad- 
miralty, and  far  narrower  than  the  present  jurisdiction  of 
the  American  and  English  admiralty  courts.  In  England 
an  act  of  parliament  was  necessary  to  enlarge  their  re- 
stricted jurisdiction  to  its  ancient  extent.1  In  the  United 
States  the  same  result  has  been  achieved,  so  far  as  neces- 
sary, by  much  judicial,  and  some  congressional,  legislation. 

THE  ADMIRALTY  CLASSICS 

2.  The  sources  of  the  admiralty  law  lie  in  the  reason  of 
man  as  educated  by  international  trade  relations, 
and  are  evidenced  by  the  great  admiralty  classics. 

The  law  of  the  sea  is  not  the  product  of  any  one  brain, 
or  any  one  age.  It  is  the  gradual  outgrowth  of  experience, 
expanding  with  the  expansion  of  commerce,  and  fitting  it- 
self to  commercial  necessities.  It  is  practically  a  branch  of 
the  law  merchant,  cm  account  of  their  intimate  connection ; 

§  1.  i  The  modern  English  admiralty  jurisdiction  is  regulated  by 
statute.  The  principal  are:  3  &  4  Vict.  c.  G5 ;  17  &  IS  Vict.  c.  104, 
§  476 ;  24  &  25  Vict.  c.  10 ;  31  &  32  Vict.  c.  71 ;  and  32  &  33  Vict.  c. 
51.  They  will  be  found  in  the  Appendix  to  Abbott's  Law  of  Mer- 
chant Ships  and  Seamen.  The  admiralty  jurisdiction,  while  much 
extended  by  these  enactments,  still  differs  sharply  from  the  Amer- 
ican admiralty  jurisdiction.  Some  of  these  differences  will  be  point- 
ed out  iu  other  connections. 


§  2)  THE   ADMIRALTY   CLASSICS  » 

and  grew,  not  from  enactment,  but  from  custom ;  not  from 
the  edicts  of  kings,  but  from  the  progressive  needs  of  so- 
ciety. 
The  Ancient  Codes  and  Commentators 

Yet  there  are  various  compilations  and  treatises  which 
evidence  the  maritime  law  of  their  respective  dates,  and 
are  valuable  for  reference,  because  they  did  not  originate 
the  provisions  on  the  subject,  but  reduced  to  concrete  form 
the  customs  and  practices  which  had  grown  up  independ- 
ent of  codes  and  commentators.  These  are  the  great  class- 
ics of  marine  law,  which  occupy  to  it  the  relation  that  Ba- 
con's Abridgment  or  Coke's  and  Blackstone's  writings  bear 
to  the  common  law  of  England. 

The  Roman  Civil  Law  contains  many  provisions  regu- 
lating the  rights  and  responsibilities  of  ships. 

The  Digest  quotes  from  the  ancient  Rhodian  Code  its 
provision  as  to  contribution  of  interests  in  general  average. 
It  contains  provisions  also  in  relation  to  the  liability  of 
vessels  for  injury  to  cargo,  for  punishment  of  thieves  and 
plunderers,  and  for  borrowing  on  bottomry  or  responden- 
tia.2 

The  Consolato  del  Mare  is  a  collection  of  marine  laws 
antedating  the  fifteenth  century,  though  neither  its  author 
nor  its  date  is  known.  It  is  probably  a  compilation  of  the 
marine  customs  then  in  vogue  among  the  trading  nations 
of  Europe,  and  may  be  found  in  the  collection  of  maritime 
laws  made  by  Pardessus. 

The  Laws  of  Oleron  take  their  name  from  the  island  of 
Oleron  off  the  French  coast,  and  show  the  customs  then 
prevailing  in  respect  to  many  of  the  most  important  sub- 
jects relating  to  shipping.  They  are  supposed  to  have  been 
compiled  under  the  direction  of  Eleanor  of  Aquitaine,  who, 
as  queen,  first  of  France  and  then  of  England,  and  as  re- 
gent of  the  latter  during  the  absence  of  her  son  Richard 

§  2.     2  Dig.  14,  2 ;   4,  9 ;    22,  2 ;    47,  5  ;    47,  9. 


6  ORIGIN   AND   HISTORY   OF   THE   ADMIRALTY  (Ch.  1 

Coeur  de  Lion  on  the  Crusades,  was  impressed  with  the 
importance  of  such  a  work. 

The  Laws  of  Wisbuy,  a  city  of  the  island  of  Gothland,  in 
the  Baltic,  are  similar  to  the  Laws  of  Oleron,  and  were 
probably  based  upon  them. 

The  Ordonnance  de  la  Marine  of  Louis  XIV  vindicates 
France  from  the  charge  that  her  people  are  not  fitted  for 
maritime  enterprise.  It  was  published  in  1681,  and  is  a 
learned  and  accurate  digest  of  marine  law  and  usages,  and 
the  best  evidence  to  this  day  of  the  extent  and  nature  of 
the  admiralty  jurisdiction. 

The  Laws  of  Oleron,  the  Laws  of  Wisbuy,  and  the  Or- 
donnance were  printed  as  an  appendix  to  Peters'  Admiral- 
ty Decisions.  They  have  been 'reprinted,  along  with  the 
Laws  of  the  Hanse  Towns  and  other  interesting  matter 
of  the  same  sort,  as  an  appendix  to  volume  30  of  the  Federal 
Cases,  thus  rendering  them  easily  accessible. 

In  1760,  Valin,  a  distinguished  advocate  of  Rochelle,  pub- 
lished a  commentary  on  the  Ordonnance,  in  two  quarto 
volumes,  which  ranks  in  authority  as  high  as  the  Ordon- 
nance itself. 

Cleirac,  another  French  writer,  published  at  Bordeaux, 
about  the  middle  of  the  seventeenth  century,  his  work  "Us 
et  Coustumes  de  la  Mer,"  which  contains  the  Laws  of 
Oleron,  of  Wisbuy,  of  the  Hanse  Towns,  and  many  other 
continental  provisions,  with  valuable  annotations  of  his 
own. 

The  treatise  of  Roccus  "De  Navibus  et  Naulo,"  the  writ- 
ings of  Casaregis  on  mercantile  subjects,  and  those  of  Po- 
thier  in  the  same  field,  especially  that  on  maritime  hiring, 
are  equal  in  authority  to  any  of  those  previously  named.3 

3  An  instructive  account  of  the  ancient  admiralty  classics  and  of 
their  relative  value  will  ho  found  in  Mr.  Justice  Story's  Review  of 
Jacobsen's  Laws  of  the  Sea,  first  published  in  the  North  American 
Review  in  1818,  and  his  Review  "f  Phillips  on  Insurance,  first  pub- 
lished in  the  North  American  Review,  1825.    These  were  reprinted 


§  2)  THE   ADMIRALTY   CLASSICS  7 

The  English  Authorities 

Selden's  Mare  Clausum  (1635),  Godolphin's  View  of  the 
Admiral  Jurisdiction  (2d  Ed.  1685),  the  productions  of 
Sir  Leoline  Jenkins  (partly  found  in  Wynne's  Biography 
of  him  published  in  1724),  and  the  second  volume  of 
Browne's  lectures  on  the  Civil  and  Admiralty  Law  give  a 
view  of  the  development  of  the  admiralty  law  in  England 
and  its  subsequent  restriction  by  the  warfare  of  the  com- 
mon-law judges. 

More  recently  the  publication  by  the  Selden  Society  of 
the  two  volumes  of  Select  Pleas  in  Admiralty  has  thrown 
a  flood  of  light  on  the  early  history  of  the  English  admiral- 
ty system.  These  two  volumes  came  out  in  1894  and  1897 
and  constitute  volumes  6  and  11  of  the  publications  of  the 
Society,  but  are  numbered  independently.  The  introduc- 
tions to  the  two  volumes  by  Mr.  R.  G.  Marsden  are  a  price- 
less contribution  to  the  literature  on  the  subject.  The  in- 
troduction to  the  third  edition  of  Roscoe's  Admiralty  by 
Mr.  T.  L.  Mears  (reprinted  in  volume  2,  p.  312,  of  Select 
Essays  in  Anglo-American  Legal  History)  will  well  re- 
pay careful  perusal ;  and  the  first  chapter  of  the  recent 
work  of  Mr.  E.  C.  Mayers  on  Admiralty  Law  and  Practice 
in  Canada  (Carswell  Co.,  Ltd.,  Toronto,  1916)  is  a  useful 
discussion  of  the  later  English  admiralty  jurisdiction  in  the 
light  of  the  more  recent  publications. 

The  value  of  many  recent  English  treatises  to  the  stu- 
dent or  practitioner  is  diminished  by  the  space  given  to  the 
discussion  of  statutes.  But  the  later  editions  of  Abbott  on 
Shipping,  Arnould  on  Marine  Insurance,  Carver  on  Car- 
riage by  Sea,  Kennedy  on  Merchant  Salvage,  Marsden  on 
Collisions,  and  Scrutton  on  Charter  Parties  are  of  great 
assistance. 

in  the  collection  of  his  Miscellaneous  Writings  published  by  Mun- 
roe,  Boston,  1835,  at  pages  245  and  294,  respectively.  See,  also,  his; 
Inaugural  Address  as  Dane  Professor  of  Law  at  Harvard,  pages 
440,  470,  of  the  same  work. 


8  ORIGIN  AND  HISTORY  OF   THE   ADMIRALTY  (Cll.  1 

The  American  Authorities 

In  the  United  States  the  marine  classics  are  mainly  de- 
cided cases.  The  only  treatise  covering  the  whole  field  is 
the  excellent  two-volume  work  of  Parsons  on  Shipping  and 
Admiralty,  which  cannot  be  commended  too  highly.  Its 
only  fault  is  that  it  was  published  fifty  years  ago.  There 
are  other  good  works  on  separate  departments  of  marine 
law;  such  as  Marvin's  work  on  Salvage,  Dunlap's  Admi- 
ralty Practice,  Betts'  Admiralty  Practice,  Spencer's  work 
on  Collisions,  and  especially  Benedict's  treatise  on  Admi- 
ralty Practice,  which  is  indispensable  on  the  subject  of 
which  it  treats. 

As  to  the  European  codes  and  works  above  named,  it 
must  be  borne  in  mind  that  they  are  only  persuasive  au- 
thority. They  are  evidence  of  the  general  maritime  law, 
and  not  necessarily  of  our  maritime  law,  except  in  so  far 
as  they  have  been  adopted  by  us.  As  was  said  by  Mr. 
Chief  Justice  Tilghman  in  an  early  Pennsylvania  case : 
"They  and  the  commentators  on  them  have  been  received 
with  great  respect  both  in  the  courts  of  England  and  the 
United  States,  not  as  conveying  any  authority  in  them- 
selves, but  as  evidence  of  the  general  marine  law.  When 
they  are  contradicted  by  judicial  decisions  in  our  own  coun- 
try, they  are  not  to  be  regarded,  but  on  points  which  have 
not  been  decided  they  are  worthy  of  great  consideration."  4 

*  Morgan  &  Price  v.  Insurance  Co.  of  North  America  (1807)'  4  Da  11. 
455,  1  L.  Ed.  907,  cited  in  30  Fed.  Cas.  1203.  See,  also,  LOTTA- 
WANNA,  21  Wall.  558,  22  L.  Ed.  654 ;  Scotland,  105  U.  S.  24,  2G  L. 
Ed.  1001;    Elfrida,  172  U.   S.  186,  19  Sup.  Ct.  146,  43  D.  Ed.  413. 


§  3)  COLONIAL  ADMIRALTY  JURISDICTION  9 

THE  COLONIAL  ADMIRALTY  JURISDICTION, 
AND  CONSTITUTIONAL  GRANT  OF  "ADMI- 
RALTY AND  MARITIME  JURISDICTION" 

3.  The  grant  of  "admiralty  and  maritime  jurisdiction"  to 
the  federal  courts  in  the  Constitution  means  the 
jurisdiction  exercised  by  the  colonial  and  state  ad- 
miralty courts,  and  not  the  narrower  jurisdiction 
of  the  English  courts. 

Prior  to  the  Revolution,  the  several  colonies  had  admi- 
ralty courts  by  virtue  of  commissions  from  the  crown. 
These  commissions  conferred  a  jurisdiction  much  wider 
than  that  of  the  same  courts  in  the  mother  country.6 

On  the  Declaration  of  Independence,  each  colony  became 
a  separate  nation,  and  organized  its  own  system  of  courts. 
Although  the  abuses  of  power  in  revenue  matters  had  been 
one  of  the  grievances  which  led  to  the  Revolution,  and  con- 
tributed an  indignant  sentence  to  the  Declaration  of  Inde- 
pendence, the  different  colonies  practically  adopted  the  ju- 
risdiction of  the  colonial  vice  admiralty  courts  for  their 
own,  impressed  by  its  advantages  to  their  nascent  shipping; 
and  they  disregarded  the  confined  limits  of  the  British  ma- 
rine tribunals.  The  Virginia  statute  of  1779  is  a  good  illus- 
tration : 

"Be  it  enacted  by  the  general  assembly,  that  the  court  of 
admiralty,  to  consist  of  three  judges,  any  two  of  whom  are 
declared  to  be  a  sufficient  number  to  constitute  a  court, 
shall  have  jurisdiction  in  all  maritime  causes,  except  those 
wherein  any  parties  may  be  accused  of  capital  offenses,  now 
depending  and  hereafter  to  be  brought  before  them,  shall 
take  precedence  in  court  according  to  the  order  in  time  of 
their  appointment,  and  shall  be  governed  in  their  proceed- 

§  3.  b  An  idea  of  its  extent  may  be  gathered  from  Lord  Corn- 
bury's  vice  admiral's  commission,  set  out  in  extenso  in  section  124 
et  seq.,  Ben.  Adm. 


10  ORIGIN   AND   HISTORY   OF    THE    ADMIRALTY  (Ch.  1 

ings  and  decisions  by  the  regulations  of  the  Congress  of 
the  United  States  of  America,  by  the  acts  of  the  general  as- 
sembly, by  the  Laws  of  Oleron  and  the  Rhodian  and  Im- 
perial Laws,  so  far  as  they  have  been  heretofore  observed 
in  the  English  courts  of  admiralty,  and  by  the  laws  of  na- 
ture and  of  nations."  6 

These  courts  were  in  active  operation  from  the  date  when 
the  colonies  declared  their  independence  in  1776  to  the 
adoption  of  the  Constitution  in  1789. 

THE  WATERS   INCLUDED 

4.  The  waters  included  in  the  admiralty  jurisdiction  are  all 
waters,  whether  tidal  or  not,  navigable  for  com- 
merce of  a  substantial  character. 

Repudiation  of  Ancient  Tidal  Test  for  Test  of  Navigability 
Article  3,  §  2,  of  this  instrument  extended  the  judicial 
power  of  the  United  States,  inter  alia,  "to  all  cases  of  admi- 
ralty and  maritime  jurisdiction."  It  was  long  assumed 
without  examination  that  the  measure  of  the  jurisdiction 
referred  to  in  this  clause  was  that  of  the  English  admiralty 
courts  at  the  time  of  the  Revolution.  Their  standard  was 
the  reach  of  the  tides.  In  the  contracted  islands  of  the 
mother  country  there  were  no  navigable  waters  that  were 
not  tidal.  And  so,  when  the  question  first  came  before  the 
Supreme  Court,  it  decided  that  the  domain  of  the  American 
admiralty  was  bounded  by  the  ebb  and  flow  of  the  tide.7 
But  this  rule  soon  became  embarrassing.  In  Peyroux  v. 
Howard  8  the  court  found  itself  gravely  discussing  wheth- 
er a  slight  swell  at  New  Orleans  could  properly  be  called 
a  tide.  Our  early  statesmen,  living  in  weak  communities 
strung  along  the  Atlantic  Coast,  did  not  realize  the  possi- 

6  10  Hen.  St  p.  9a 

§  4.     7  Thoinns  Jefferson,  10  Wheat.  428,  6  L.  Ed.  358. 

a  7  Tet.  342,  8  L.  Ed.  700. 


§    4)  THE    WATEKS   INCLUDED  H 

bilities  of  the  boundless  West,  inaccessible  from  its  barrier 
of  mountains  and  savages.  Jay,  our  first  Chief  Justice,  had 
been  willing  to  barter  away  the  navigation  of  the  Missis- 
sippi, and  even  to  restrict  the  export  of  cotton,  which  laid 
the  foundation  of  our  national  wealth.  The  mighty  rivers 
and  their  tributaries  which  gave  access  to  a  continent,  the 
Great  Lakes  of  our  northern  border,  which  had  witnessed 
some  of  our  most  notable  feats  of  arms,  were  by  this  tidal 
test  relegated  to  a  place  with  the  English  Cam  and  Isis — 
not  wide  enough  for  a  boat  race.  The  restriction  could  not 
be  endured,  and  so  the  court  gradually  broke  away  from 
English  traditions.  In  Waring  v.  Clarke  9  it  decided  that 
our  Constitution  did  not  mean  to  adopt  the  English  stand- 
ard, and  that  the  admiralty  could  take  cognizance  of  con- 
troversies maritime  in  their  nature,  though  they  arose  in 
the  body  of  a  county.  This  first  step  was  but  a  prelimi- 
nary to  entire  emancipation,  and  its  corollary  was  THE 
GENESEE  CHIEF,10  which  repudiated  the  tidal  test  en- 
tirely, and  held  that  the  true  criterion  of  jurisdiction  was 
whether  the  water  was  navigable. 

Since  then  the  court  has  frequently  said  that  the  grant  of 
jurisdiction  in  the  Constitution  referred,  as  to  subject-mat- 
ter, not  to  the  curtailed  limits  of  the  English  admiralty,  but 
to  the  system  with  which  its  framers  were  familiar;  and 
this  was  the  colonial  and  state  admiralty,  which  was  prac- 
tically coincident  with  the  ancient  continental  admiralty.11 

What  are  Navigable  Waters 

It  is  not  easy  to  say  as  matter  of  law  exactly  what  wa- 
ters are  navigable  in  this  sense.  Care  must  be  taken  to 
distinguish  between  the  clause  granting  the  admiralty  ju- 
risdiction to  the  federal  courts  and  the  clause  granting  to 
congress  the  power  to  regulate  interstate  and  foreign  com- 

9  ,j  How.  441,  12  L.  Ed.  226. 
io  12  How.  443,  13  L.  Ed.  105S. 

ii  LOTTAWANNA,  21  Wall.  55S,  22  L.  Ed.  654;  Ex  parte  Easton, 
95  U.  S.  68,  24  L.  Ed.  373. 


12  ORIGIN  AND   HISTORY  OF   THE   ADMIRALTY  (Ch.  1 

merce.  The  Supreme  Court  has  frequently  said  that  they 
are  independent  of  each  other.  Yet  the  admiralty  jurisdic- 
tion is  at  least  as  extensive  as  the  commercial  clause.  It 
extends  to  waters  constituting  actually  or  potentially  a 
link  in  interstate  commerce  and  navigable  by  craft  of  suffi- 
cient bulk  to  be  engaged  in  interstate  commerce,  though 
such  waters  lie  entirely  within  the  limits  of  a  state  and 
above  tide  water,  and  though  the  voyage  be  between  ports 
of  the  same  state.12 

Under  the  commerce  clause  the  phrase  "navigable  wa- 
ters" has  been  often  considered.  THE  DANIEL  BALL13 
was  a  proceeding  against  a  steamer  for  violating  the  fed- 
eral license  laws.  She  navigated  entirely  within  the  state 
of  Michigan,  on  a  short  river,  and  drew  only  two  feet  of  wa- 
ter. The  river  emptied  into  Lake  Michigan.  In  the  course 
of  the  opinion  the  court  said:  "Those  rivers  must  be  re- 
garded as  public  navigable  rivers  in  law  which  are  naviga- 
ble in  fact.  And  they  are  navigable  in  fact  when  they  are 
used,  in  their  ordinary  condition,  as  highways  for  com- 
merce over  which  trade  and  travel  are  or  may  be  conduct- 
ed in  the  customary  modes  of  trade  and  travel  on  water. 
And  they  constitute  navigable  waters  of  the  United  States, 
within  the  meaning  of  the  acts  of  Congress,  in  contradis- 
tinction from  the  navigable  waters  of  the  states,  when  they 
form  in  their  ordinary  condition  by  themselves,  or  by  unit- 
ing with  other  waters,  a  continued  highway  over  which 
commerce  is  or  may  be  carried  on  with  other  states  or  for- 
eign countries  in  the  customary  modes  in  which  such  com- 
merce is  conducted  by  water." 

In  Leovy  v.  U.  S.14  the  court  upheld  an  act  of  the  Loui- 
siana Legislature  authorizing  the  damming  of  a  small  bayou 

12  IN  RE  GABNETT,  141  U.  S.  1,  11  Sup.  Ct.  S40,  35  L.  Ed.  631; 
Harrison  v.  Fite,  148  Fed.  781,  78  C.  C.  A.  I  IT;  Manigault  v.  Springs, 
199  D.  S.   17."..  26  Sup.  Ct.  11!7.  50  E.  Ed.  274. 

i3io  Wall.  rj.TT,  19  E.  Ed.  999. 

i*  177  U.  S.  G21,  20  Sup.  Ct.  797,  44  E.  Ed.  914. 


§    4)  THE    WATERS   INCLUDED  13 

for  the  purpose  of  reclaiming  the  lands  bordering  thereon. 
It  was  shown  that  only  fishermen  and  03'ster  boats  used  it. 
The  court  said  that,  in  order  to  be  public  navigable  waters, 
there  should  be  "commerce  of  a  substantial  and  permanent 
character  conducted  thereon." 

The  admiralty  jurisdiction  does  not  extend  over  the  wa- 
ters of  a  lake  entirely  within  the  borders  of  a  state,  and 
without  any  .navigable  outlet.  In  United  States  v.  Bur- 
lington &  Henderson  County  Ferry  Co.15  Judge  Love 
seems  to  think  that  such  waters  are  without  the  admiralty 
jurisdiction,  though  the  point  was  not  directly  involved. 
In  Stapp  v.  The  Clyde  16  the  question  was  necessarily  in- 
volved, and  the  court  decided  that  such  waters  were  not  of 
admiralty  cognizance. 

Artificial  as  well  as  natural  water  ways  come  within  the 
jurisdiction  of  the  admiralty.  In  The  Oler  17  this  was  de- 
cided as  to  the  Albemarle  and  Chesapeake  Canal.  After- 
wards, in  Ex  parte  Boyer,18  the  Supreme  Court  upheld  the 
jurisdiction  in  the  case  of  a  collision  between  two  canal  boats 
on  the  Illinois  and  Lake  Michigan  Canal,  an  artificial  Canal 
entirely  within  the  limits  of  a  state,  but  forming  a  link  in 
interstate  communication,  though  the  vessels  themselves 
were  on  voyages  beginning  and  ending  in  the  state. 

is  (D.  C.)  21  Fed.  331. 

16  43  Minn.  192,  45  N.  W.  430.  See,  also,  Rockaway,  156  Fed. 
692 ;  Robert  W.  Parsons,  191  U.  S.  17,  24  Sup.  Ct.  8,  48  L.  Ed.  73. 
They  are  certainly  not  within  the  commerce  clause  of  the  Consti- 
tution. Veazie  v.  Moor,  14  How.  568,  14  L.  Ed.  545.  Moore  v. 
American  Transp.  Co.,  24  How.  1,  16  L.  Ed.  674. 

17  2  Hughes,  12,  Fed.  Cas.  No.  10,485. 

is  109  U.  S.  629,  3  Sup.  Ct.  434,  27  L.  Ed.  1056.  See,  also,  Robert 
W.  Parsons,  191  U.  S.  17,  24  Sup.  Ct.  8,  48  L.  Ed.  73. 


14  ORIGIN   AND   HISTORY   OF   THE   ADMIRALTY  (Ch.  1 


THE   CRAFT   INCLUDED 

5.  The  character  of  craft  included  in  the  admiralty  jurisdic- 
tion is  any  movable  floating  structure  capable  of 
navigation  and  designed  for  navigation. 

The  evolution  of  the  ship  from  the  dugout  or  bark  canoe 
to  the  galley  with  gradually  increasing  banks  of  oars,  then 
to  the  sail  vessel  with  masts  and  sails  constantly  growing 
and  replacing  the  human  biceps,  then  to  the  self-propelling 
steamers,  reckless  of  ocean  lanes  and  calm  belts,  is  one  of 
the  miracles  of  progress.  As  to  all  of  these  the  jurisdiction 
of  the  admiralty  is  clear.  But  hardly  less  important,  at 
least  in  local  commerce,  are  the  various  nondescripts  which 
dot  our  harbors,  like  lighters,  rafts,  car  floats,  floating 
docks,  dredges,  and  barges  with  no  motive  power  aboard. 

Here,  again,  it  must  be  remembered  that  the  admiralty 
clause  of  the  Constitution,  and  not  the  commerce  clause, 
is  being  considered.  A  vessel  need  not  necessarily  be  en- 
gaged in  commerce  to  come  within  the  jurisdiction,  though, 
if  it  was,  the  jurisdiction  would  be  clear.  The  true  test 
is  capability  of  navigation  and  the  animus  navigandi.  The 
very  same  structure,  when  permanently  attached  to  the  shore, 
and  thereby  becoming  a  practical  extension  of  the  shore,  with- 
out any  intent  of  moving,  might  be  out  of  the  jurisdiction;  and 
yet,  if  temporarily  attached,  and  designed  to  be  shifted  from 
place  to  place  by  water,  it  might  be  within  the  jurisdiction. 

The  leading  case  on  this  subject  is  COPE  v.  VAL- 
LETTE  DRY-DOCK  CO.19  There  the  court  held  that 
the  jurisdiction  did  not  include  a  floating  dry  dock  perma- 
nently attached  to  the  shore  at  New  Orleans,  and  not  in- 
tended for  navigation.  It  had  been  moored  to  the  same 
place  for  twenty  years.  Had  it  been  designed  to  be  towed 
around  to  different  places  in  the  harbor,  that  would  have 

§  5.     i»  119  U.  S.  625,  7  Sup.  Ct.  330.  30  L.  Ed.  501. 


3  5)  THE    CRAFT    INCLUDED 


15 


been  navigation  sufficient,  and  in  such  case  the  court  would 
probably  have  taken  jurisdiction.  It  is  difficult  to  reconcile 
with  this  the  case  of  Woodruff  v.  One  Covered  Scow,20  in 
which  Judge  Benedict  took  jurisdiction  of  a  floating  boat- 
house  permanently  attached  to  a  wharf  to  afford  access  to 
shore  for  persons  from  small  boats.  As  the  Vallette  Dry- 
Dock  Case  was  only  decided  on  January  10,  1887,  and  this 
case  on  February  18,  1887,  it  is  likely  that  the  former  was 
not  known  to  Judge  Benedict. 

Under  the  jurisdiction  are  included  lighters  of  the  sim- 
plest kind,  for  they  are  considered  to  "appertain  to  travel 
or  trade  or  commerce."  21 

A  floating  elevator,  used  for  the  storage  of  grain,  but 
designed  to  be  moved  from  place  to  place  in  a  harbor,  is 
included.22 

There  are  many  cases  extending  the  jurisdiction  over 
dredges,  both  those  which  lift  the  mud  by  dippers,  and 
deposit  it  in  scows  to  be  towed  away,  and  those  which 
work  on  a  sucking  principle,  drawing  the  mud  from  the 
bottom,  and  delivering  it  on  shore  by  long  lines  of  pipe.23 

The  same  is  true  of  floating  movable  derricks,  and  pile 
drivers.24 

On  the  other  hand,  a  marine  pump  dredge,  capable  of 
being  moved  from  place  to  place,  but  resting  on  piles,  and 


20  (D.  C.)  30  Fed.  269. 

21  General  Cass,  1  Brown,  Adra.  334,  Fed.  Cas.  No.  5,307;  Wilming- 
ton (D.  C.)  48  Fed.  560. 

22Hezekiah  Baldwin.  8  Ben.  556,  Fed.  Cas.  No.  6,449. 

23  Saylor  v.  Taylor,  23  C.  C.  A.  343,  77  Fed.  476;  McRae  v.  Dredg- 
ing Co.  (C.  C.)  86  Fed.  344  :  Mae,  7  P.  D.  126 ;  Richmond  Dredging 
Co.  v.  Standard  American  Dredging  Co.,  20S  Fed.  S62,  126  C.  C.  A.  20. 

24  Maltby  v.  A  Steam  Derrick,  3  Hughes,  477,  Fed.  Cas.  No.  9,000; 
Lawrence  v.  Flatboat  (D.  C.)  84  Fed.  200 ;  Southern  Log  Cart.  &  Sup- 
ply Co.  v.  Lawrence.  30  C.  C.  A.  4S0,  S6  Fed.  907 ;  Raithmoor  (D.  C.) 
186  Fed.  849  (reversed  on  another  point,  not  affecting  this  question, 
241  U.  S.  166,  36  Sup.  Ct.  514,  60  L.  Ed.  937). 


16  ORIGIN   AND   HISTORY   OF    THE    ADMIRALTY  (Ch.  1 

not  floating,  has  been  held  to  be  excluded  from  admiralty 
cognizance.25 

In  The  Public  Bath  No.  13  26  Judge  Brown  held  that  a 
bath  house  built  on  boats,  and  made  to  shift  from  place  to 
place,  is  within  the  jurisdiction.  This,  and  U.  S.  v.  Bur- 
lington &  Henderson  County  Ferry  Co.,27  are  good  illustra- 
tions of  cases  where  the  courts  treat  navigability  irrespec- 
tive of  trade  or  commerce  as  the  proper  test  of  the  admiral- 
ty jurisdiction  in  contradistinction  to  the  powers  of  Con- 
gress under  the  commerce  clause  of  the  Constitution. 

Judge  Cushman  has  recently  held  that  an  aeroplane  is 
not  a  subject  of  admiralty  jurisdiction.28 

In  construing  the  meaning  of  the  word  "ship"  under  the 
English  statutes  conferring  jurisdiction  on  the  admiralty 
courts,  the  House  of  Lords  has  held  that  a  floating  gas  buoy, 
which  had  been  broken  loose,  and  had  been  saved,  could 
not  be  libeled  for  salvage,  as  it  was  not  designed  either  for 
navigation  or  for  use  in  commerce.29 

The  Hendrick  Hudson 30  was  a  dismantled  steamer, 
which  was  being  used  as  a  hotel.  While  being  towed  to 
another  place,  it  was  in  peril,  and  salvage  services  were 
rendered  to  it.  The  court  held  that  it  was  not  within  the 
cognizance  of  the  admiralty. 

This  decision  would  seem  to  be  out  of  line  with  the  more 
recent  authorities.  Whether  the  structure  was  a  hotel  or  a 
steamboat,  it  was  engaged  in  actual  navigation.  Had  the 
Vallette  Dry  Dock  been  so  engaged,  the  Supreme  Court 
would  probably  have  sustained  the  jurisdiction. 

2  6  Big  Jim  (D.  C.)  61  Fed.  503. 

2  0  (D.  C.)  61  Fed.  692. 

27  (D.  C.)  21  Fed.  331. 

as  Crawford  Bros.  No.  2  (D.  O.)  215  Fed.  269. 

29  Gns  Fl-.nt  Whittnn  No.  2.  [1897]  A.  C.  337.  But  the  English 
courts  have  sustained  jurisdiction  over  a  hopper  barge.  Mudlark, 
[1911]  P.   1  L6. 

803  Ben.  419,  Fed.  Cas.  No.  6,355. 


§  5)  THE    CRAFT    INCLUDED  1? 

A  ship  becomes  such  at  her  launching.  Prior  thereto  she 
is  a  mere  congeries  of  wood  and  iron.31 

Rafts 

Whether  a  raft  is  such  a  structure  as  to  come  under  the 
jurisdiction  cannot  be  considered  settled.  The  Vallette 
Dry-Dock  Case  seems,  in  its  reasoning,  to  assume  that 
ships  and  cargoes  of  ships  alone  come  under  the  jurisdic- 
tion, and  that  floating  merchandise,  never  in  any  way  con- 
nected with  a  ship,  is  not  included.  Yet  in  its  concluding 
paragraph  it  mentions  the  case  of  rafts,  and  cites  several 
well-considered  decisions  sustaining  the  jurisdiction,  but 
without  expressing  either  approval  or  disapproval. 

In  Seabrook  v.  Raft  of  Railroad  Cross-Ties,32  Judge  Si- 
monton,  in  sustaining  jurisdiction,  says  that  rafts  were  the 
original  methods  of  water  locomotion.  As  they  are  nav- 
igated, and  designed  to  be  navigated,  and  not  tied  perma- 
nently to  one  place,  like  a  dry  dock,  the  weight  of  reasoning 
is  in  favor  of  the  jurisdiction  in  such  case. 

si  Tucker  v.  Alexandroff,  183  U.  S.  424,  22  Sup.  Ct.  195,  46  I>.  Ed. 
264;  North  Pacific  S.  S.  Co.  v.  Hall  Bros.  Marine  Ry.  &  Shipbuild- 
ing Co.,  249  U.  S.  119,  39  Sup.  Ct.  221,  63  L.  Ed.  510. 

32  (E).  C.)  40  Fed.  596.     See,  also,  Mary  (D.  C)  123  Fed.  609;    Gas 
Float  Whittou  No.  2,  [1S97]  A.  C.  337. 
Htjghes.Adm.  (2d  Ed.) — 2 


18  ADMIRALTY  JURISDICTION  (Ch.  2 


CHAPTER  II 

OF  THE  ADMIRALTY  JURISDICTION  AS  GOVERNED  BY  THE 
SUBJECT-MATTER 

6.  Cases  in  Contract  and  Cases  in  Tort. 

7.  Tests   of  Jurisdiction. 
8-10.    Contracts  of  Seamen. 

11.    Master's  Right  to  Proceed  in  Rem  for  His  Wages. 
12-19.    Pilotage. 

CASES  IN  CONTRACT  AND  CASES  IN  TORT 

6.  The  sources  of  admiralty  jurisdiction,  as  in  other  branch- 

es of  substantive  law,  naturally  subdivide  into 
rights  arising  out  of  contract  and  rights  arising  out 
of  tort. 

(a)  Rights  arising   out  of  contract  are   maritime  when 

they  relate  to  a  ship  as  an  instrument  of  commerce 
or  navigation,  intended  to  be  used  as  such  or  to 
facilitate  its  use  as  such. 

(b)  Rights  arising  out  of  tort  are  maritime  when  they 

arise  on  public  navigable  waters. 

7.  TESTS  OF  JURISDICTION— The  test  of  jurisdiction 

is  different  in  each  of  these  classes  of  cases. 

(a)  The  test  in  contract  cases  is  the  nature  of  the  trans- 

action. 

(b)  The  test  in  tort  cases  is  the  locality. 

In  the  warfare  made  by  the  common  law  upon  the  admi- 
ralty courts,  one  line  of  attack  was  the  contention  that 
only  contracts  were  maritime  which  were  made  upon  the 
sea,  and  to  be  performed  upon  the  sea;  thus  attempting  to 
apply  to  contractual  rights,  as  well  as  torts,  the  test  of  lo- 
cality. Under  the  English  decisions  this  distinction  ex- 
cluded many  subjects  of  marine  cognizance  which  the  Con- 


§  6-7)     CASES  IN  CONTRACT  AND  CASES  IN  TORT       10 

tinental  admiralty  covered.  In  some  of  the  earlier  deci- 
sions of  this  country  traces  of  this  distinction  may  also  be 
found.  But  it  is  now  settled  that  the  test  in  matters  of 
contract  is  irrespective  of  locality,  and  depends  upon  the 
nature  of  the  transaction.  In  England  itself  the  restriction 
became  so  intolerable  that  an  act  of  parliament  was  nec- 
essary, and  accordingly  the  acts  defining  the  jurisdiction  of 
the  admiralty  courts  largely  restored  the  ancient  admiralty 
jurisdiction  of  the  English  courts. 

What  Contracts  Are  Maritime  by  Nature 

The  courts  have  in  many  instances  said  whether  certain 
particular  controversies  were  maritime  or  not,  but  no  sat- 
isfactory definition  has  yet  been  enunciated  which  will  en- 
able the  student  to  say  in  advance  whether  a  given  case 
is  marine  or  not.  In  DE  LOVIO  v.  BOIT,1  Mr.  Justice 
Story,  in  holding  that  contracts  of  marine  insurance  are 
within  the  admiralty  jurisdiction,  discusses  with  great 
learning  the  early  extent  of  that  jurisdiction,  naming  in 
more  than  one  connection  the  general  subjects  which  writ- 
ers and  codifiers  had  enumerated,  and  says  that  it  includes 
"all  transactions  and  proceedings  relative  to  commerce  and 
navigation" ;  also  "all  contracts  which  relate  to  the  naviga- 
tion, business,  or  commerce  of  the  sea." 

In  New  England  Marine  Ins.  Co.  v.  Dunham  2  the  court 
says:  "The  true  criterion  is  the  nature  and  subject-matter 
of  the  contract  as  to  whether  it  was  a  maritime  contract, 
having-  reference  to  maritime  services  or  maritime  trans- 
actions." 

In  Zane  v.  The  President,3  Mr.  Justice  Washington  says : 
"If  the  subject-matter  of  a  contract  concerned  the  naviga- 
tion of  the  sea,  it  is  a  case  of  admiralty  and  maritime  juris- 
diction, although  the  contract  be  made  on  land."  The  case 
was  a  proceeding  by  a  material  man. 

§§  6-7.     i  2  Gall.  39S,  Fed.  Cas.  No.  3,776. 

2  11  Wall.  1,  20  L.  Ed.  90. 

3  4  Wash.  C.  C.  45.1,  Fed.  Cas.  No.  1S.201. 


20  ADMIRALTY   JURISDICTION  (Ch.  2 

Wortman  v.  Griffith  4  was  a  suit  by  the  owner  of  a  ship- 
yard for  the  use  of  his  marine  ways  by  the  vessel.  Mr.  Jus- 
tice Nelson  decided  that  the  admiralty  had  jurisdiction, 
saying:  "The  nature  of  the  contract  or  service,  and  not 
the  question  whether  the  contract  is  made  or  the  service 
is  rendered  on  the  land  or  on  the  water,  is  the  proper  test 
in  determining  whether  the  admiralty  has  or  has  not  juris- 
diction." 

Under  the  test  as  laid  down,  the  fact  that  a  ship  may  be 
incidentally  connected  with  the  transaction  does  not  make 
the  matter  maritime. 

In  Ward  v.  Thompson  5  there  was  an  agreement  between 
certain  parties  to  carry  on  a  trade  venture,  one  contributing 
a  vessel  and  the  other  his  skill  and  labor,  on  the  basis  of  a 
division  of  profits  on  a  fixed  ratio.  The  court  held  that  this 
was  nothing  but  an  ordinary  common-law  agreenfent  of 
partnership,  and  was  not  made  maritime  by  the  fact  that  a 
ship  was  part  of  the  partnership  property. 

On  the  same  principle  a  traffic  agreement  between  a  rail- 
road company  and  the  owner  of  a  number  of  steamers  to 
operate  as  a  through  line  of  transportation,  dividing  the 
receipts,  is  not  maritime.6 

Bogart  v.  The  John  Jay  7  was  a  proceeding  in  admiralty 

4  3  Blatchf.  52S.  Fed.  Cas.  No.  18,057.  See,  also,  North  Pac.  S.  S. 
Co.  v.  Hall  Bros.  Marine  Ity.  &  Shipbuilding  Co.,  249  U.  S.  119,  39 
Sup.  Ct.  221.  G3  L.  Ed.  510. 

s  22  How.  330,  16  L.  Ed.  249. 

a  Graham  v.  Oregon  R.  &  Xav.  Co.  (D.  C.)  134  Fed.  454. 

i  17  How.  399,  15  L.  Ed.  95.  In  England,  independent  of  statute, 
admiralty  had  no  jurisdiction  to  enforce  a  mortgage.  By  3  &  4  Vict, 
c.  •',.";,  §  3  the  mortgagee  was  allowed  to  intervene  when  (he  ship  was 
under  arrest  in  a  case  of  which  the  court  had  jurisdiction.  And  by 
24  Vict.  c.  10,  §  11,  any  duly  registered  mortgagee  was  allowed  to 
institute  an  independent  proceeding.  Mayer,  Admiralty  Law  &  Pr. 
70;  Atalanta,  5  Can.  Ex.  57.  As  Parliament  is  not  bound  by  the 
Limitations  of  a  written  constitution,  it  can  make  a  thing  marine  by 
statute  which  is  not  so  by  nature.  But  the  grant  of  admiralty  juris- 
diction in  tbis  country  is  constitutional,  and  Congress  could  hardly 


§  6-7)     CASES  IN  CONTRACT  AND  CASES  IN  TORT       21 

to  foreclose  a  mortgage  on  a  vessel.  There  was  nothing  to 
show  th'at  the  money  had  been  borrowed  for  any  purpose 
connected  with  the  use  of  the  vessel,  and  the  only  connec- 
tion the  vessel  had  with  it  was  the  fact  that  it  was  his  se- 
curity for  the  debt,  just  as  any  other  piece  of  personal  prop- 
erty might  have  been.  It  was  held  that  admiralty  had  no 
jurisdiction. 

In  Minturn  v.  Maynard  8  the  Supreme  Court  decided  that 
an  admiralty  court  had  no  jurisdiction  of  mere  matters  of 
account,  though  they  were  accounts  relating  to  a  ship. 

In  the  Illinois9  a  party  had  leased  the  privilege  of  run- 
ning a  bar  on  a  passenger  steamer  plying  between  Mem- 
phis and  Vicksburg.  When  the  vessel  fell  into  trouble,  and 
was  libeled  by  some  other  creditor,  he,  too,  came  into  the 
admiralty  court,  and  claimed  that  this  was,  in  effect,  a  char- 
ter of  part  of  the  vessel,  and  that  he  had  a  remedy  in  ad- 
miralty. The  court,  however,  could  not  see  that  a  transac- 
tion of  this  sort  had  any  maritime  characteristics,  and  de- 
cided that  there  was  no  jurisdiction. 

In  Doolittle  v.  Knobeloch  10  the  owner  of  a  vessel  had  em- 
ployed the  libelant  to  purchase  a  steamer  for  him,  and  to 
look  generally  after  his  interests  in  bringing  the  steamer 
from  New  York  to  Charleston,  though  not  in  connection 
with  any  navigation  of  the  vessel.  He  attempted  to  collect 
his  money  by  a  proceeding  in  rem  against  the  vessel  and  in 

give  a  mortgagee  the  right  to  institute  an  independent  proceeding 
in  view  of  the  decision  of  the  Supreme  Court  that  such  a  right  is  not 
by  nature  maritime. 

The  right  to  intervene  in  a  proceeding  by  a  holder  of  a  maritime 
right  of  action  is  conferred  by  rule  43  of  the  Supreme  Court,  and 
rests  on  a  different  basis. 

s  17  How.  477,  15  L.  Ed.  235 ;  Zillah  May  (D.  C.)  221  Fed.  1016. 
Here,  too,  express  jurisdiction  has  been  conferred  in  England  by  24 
Vict.  c.  10,  §  8,  as  to  registered  ships.  Lady  of  the  Lake,  L.  R.  3 
A.  &  E.  29. 

9  2  Flip.  383,  Fed.  Cas.  No.  7,005. 

io  (D.  C.)  39  Fed.  40.  But  an  agreement  to  undertake  the  re- 
sponsibility of  navigating  a  vessel  back  to  her  home  port  is  mari- 
time.    Laurel  (D.  C.)  113  Fed.  373. 


22  ADMIRALTY   JURISDICTION  (Ch.  2 

personam  against  the  owner.  The  court  decided  that  it 
was  not  an  admiralty  contract. 

If  the  principal  contract  is  maritime,  jurisdiction  is  not 
ousted  by  the  fact  that  some  incidental  question  growing 
out  of  it  would  not  be  maritime  in  case  it  stood  alone.11 

On  the  other  hand,  preliminary  contracts  looking  to  a 
formal  contract  are  not  maritime,  though  the  contract  it- 
self, when  executed,  may  be  so.  For  instance,  a  contract  of 
charter  party  partly  performed  is  maritime,  but  a  prelimi- 
nary agreement  to  make  a  contract  of  charter  party  is  not 
maritime.12 

The  same  transaction  may  be  maritime  in  one  case  and 
not  maritime  in  another.  As  emphasizing  this  distinction, 
there  is  the  maxim  that  "a  ship  is  made  to  plough  the  seas, 
and  not  to  lie  at  the  walls."  Hence,  wharfage  rendered  to 
a  ship  while  loading  or  unloading,  or  in  her  regular  use  as 
a  freight-earning  enterprise,  is  a  maritime  contract.13 

On  the  other  hand,  wharfage  to  a  ship  laid  up  for  the 
winter  while  waiting  for  the  season  to  open  is  not  mari- 
time.14 

This  distinction  is  further  illustrated  by  the  decisions  in 
relation  to  watchmen  on  vessels.  Those  who  are  watchmen 
while  vessels  are  in  port  during  voyages  are  considered 
as  having  made  a  maritime  contract,  but  those  who  have 
charge  of  her  while  laid  up  have  no  such  contract.15 

11  Charles  F.  Perry.  1  Low.  475,  Fed.  Cas.  No.  2,616;  Nash  v. 
Bohlen  (D.  C.)  167  Fed.  427. 

i-  Andrews  v.  Essex  Fire  &  Marine  Ins.  Co.,  3  Mason,  6,  Fed.  Cas. 
No.  374 ;  Tribune,  3  Suran.  144,  Fed.  Cas.  No.  14,171 ;  Oakes  v.  Rich- 
ardson, 2  Low.  173,  Fed.  Cas.  No.  10,390;  Eugene,  87  Fed.  1001,  31 
C.  C.  A.  345 ;    Steamship  Overdale  Co.  v.  Turner  (D.  C.)  206  Fed.  339. 

«  Ex  parte  Easton,  95  U.  S.  6S,  24  L.  Ed.  373;  Braisted  v.  Den- 
ton (D.  C.)  115  Fed.  428. 

K  C.  Vanderbilt  (D.  C.)  86  Fed.  785.  Wharfage  in  its  proper  sense 
must  not  be  confused  with  rent  due  for  the  lease  of  a  wharf.  This 
latter  is  not  maritime,  being  simply  a  contract  relating  to  real  es- 
tate.    .Tamos  T  Furber  (D.  C.)  157  Fed.  126. 

is  Erinagh  (D.  C.)  7  Fed.  231 ;    Fortuna  (D.  C.)  206  Fed.  573. 


§§  8-10)  CONTRACTS   OF   SEAMEN  23 

CONTRACTS  OF  SEAMEN 

8.  Every  person  (apprentices  excepted)  who  shall  be  em- 

ployed or  engaged  to  serve  in  any  capacity  on 
board  a  vessel  shall  be  deemed  and  taken  to  be  a 
seaman. 

9.  Seamen  are  the  wards  of  the  admiralty,  and  have  a  prior 

claim  for  their  wages. 

10.  Their  contracts  are  governed  by  the  ordinary  rules  of 

contract  except  as  modified  by  statute,  and  by  the 
disposition  of  the  courts  to  guard  them  against 
imposition. 

The  contracts  of  seamen  have  always  been  considered 
among  the  most  important  in  the  admiralty,  as  a  good  crew 
is  the  most  important  outfit  that  a  ship  can  have.  Her 
construction  may  be  the  best  that  modern  ingenuity  may 
produce.  Yet,  unless  she  has  a  brain  to  direct  her  course, 
and  skillful  hands  to  regulate  the  pulsations  of  her  engines 
and  manage  her  numerous  complicated  machinery,  her  pro- 
peller is  paralyzed,  her  siren  is  dumb.  It  is  not  the  gun,  but 
the  man  behind  it,  that  is  formidable;  and  in  modern  as 
in  ancient  times  the  personal  equation  is  still  controlling. 
On  this  account  the  utmost  encouragement  and  the  fullest 
protection  to  seamen  are  the  established  policy  of  the  ad- 
miralty law. 

Who  are  Seamen 

As  the  courts  have  been  liberal  in  their  construction  of 
the  word  "ship,"  they  have  been  equally  so  in  deciding  what 
constitutes  a  "seaman,"  in  the  modern  sense.  The  term 
is  not  limited  to  those  who  actually  take  part  in  the  naviga- 
tion of  the  ship.  Every  one  who  is  regularly  attached  to 
the  ship,  and  contributes  to  her  successful  handling,  is  a 
seaman,  though  he  may  not  know  one  rope  from  another. 

The  definition  above  given  is  the  exact  language  of  sec- 


24  ADMIRALTY  JURISDICTION  (Ch.  2 

tion  4612  of  the  Revised  Statutes  as  amended.16  For  in- 
stance, as  a  dredge  has  been  considered  a  ship,  so  the  men 
who  operate  it  are  held  to  be  seamen.17 

Fishermen  and  sealers,  who  go  for  that  purpose,  are  held 
to  be  seamen,  though  they  may  do  other  incidental  work.1* 

The  wife  of  the  cook,  engaged  by  the  master  as  second 
cook,  is  a  mariner  in  this  sense.19  So,  too,  the  clerk  of  a 
steamboat.20  So,  too,  a  bartender.21  So  as  to  the  ship's 
steward.22    And  the  wireless  operator.23 

On  account  of  the  peculiar  character  of  seamen,  the 
courts  scrutinize  closely  their  contracts,  in  order  to  protect 
them  from  imposition.  They  are  improvident  and  wild, 
easily  imposed  upon,  and  the  constant  prey  of  designing 
men.  Their  rights,  in  modern  times,  are  largely  governed 
by  statute.  In  the  United  States  the  statutory  provisions 
regulating  them  are  contained  in  sections  4501^4-612  of  the 
Revised  Statutes.  This  codification  of  the  law  in  relation 
to  them,  however,  has  been  much  amended  and  liberalized 
by  subsequent  legislation.  The  acts  modifying  them  will 
be  found  in  the  notes.24    A  detailed  discussion  of  the  par- 

§§  8-10.     16  u.  S.  Comp.  St.  §  S392. 

17  Saylor  v.  Taylor,  77  Fed.  476,  23  C.  C.  A.  343;  Ellis  v.  U.  S., 
206  U.  S.  240.  27  Sup.  Ct.  GOO,  51  L.  Ed.  1047,  11  Ann.  Cas.  589. 

is  Minna  (D.  C.)  11  Fed.  759;  Ocean  Spray,  4  Sawy.  105,  Fed. 
Cas.  10,412;  Domenico  v.  Alaska  Packers'  Ass'n  (D.  C.)  112  Fed. 
554;  Alaska  Packers'  Ass'n  v.  Domenico,  117  Fed.  99,  54  C.  C.  A. 
185 ;  North  Alaska  Salmon  Co.  v.  Larsen,  220  Fed.  93,  135  O.  C.  A. 
661. 

is  James  H.  Shrigley  (D.  C.)  50  Fed.  287. 

20  Sultana,  1  Brown,  Adm.  13,  Fed.  Cas.  No.  13,602. 

si  J.  S.  Warden  (D.  C.)  175  Fed.  315. 

22  Pacific  Mail  S.  S.  Co.  v.  Schmidt,  214  Fed.  513,  130  C.  C.  A. 
057. 

23  Buena  Ventura  (D.  C.)  243  Fed.  797. 

-4  Act  June  9,  1874  (18  Stat.  64);  Act  June  26,  1884  (23  Stat.  53) ; 
Act  June  19,  1886  (24  Stat.  79) ;  Act  Aug.  19,  1890  (26  Stat.  320) ; 
Act  Feb.  18,  1S95  (28  Stat.  G67) ;    Act  March  3,  1S97  (29  Stat.  6S7) ; 


§§  8-10)  CONTRACTS   OP   SEAMEN  25 

ticular  effect  of  those  amendments  is  impracticable  for  want 
of  space. 

Statutory  Provisions 

The  first  provisions  relate  largely  to  the  method  of  their 
engagement,  requiring  shipping  articles  carefully  prepared 
and  publicly  executed,  and  providing  penalties  for  the  vio- 
lation of  such  articles.  In  cases  of  ambiguity  in  construing 
these  articles,  the  courts  lean  in  favor  of  the  seamen.25 

The  next  class  of  provisions  relates  to  seamen's  wages 
and  effects.  It  was  an  old  maxim  of  the  English  admiralty 
law  that  "freight  is  the  mother  of  wages,"  though  there 
were  many  exceptions  to  it,  and  its  true  limits  have  not 
been  always  understood.  This  rule  no  .longer  prevails  in 
the  United  States  under  the  statutory  provisions  referred 
to.  The  ancient  rule  and  its  limitations  may  be  seen  from 
the  opinion  of  Mr.  Justice  Woodbury  in  the  Niphon's 
Crew.26 

In  order  to  protect  a  seaman  from  imposition,  the  stat- 
utes render  void  any  agreement  by  him  waiving  any  reme- 
dies for  his  wages,  and  forbid  any  assignment  or  attach- 
ment of  them.27 

Under  the  same  policy,  disproportionate  advances  to  sea- 
men beyond  wages  earned  are  made  unlawful.  The  act 
goes  so  far  as  to  forbid  such  advances  in  our  ports  to  sea- 
men in  foreign  ships,  though  it  has  been  held  inapplicable 

Act  December  21,  189S  (30  Stat.  755).  Act  March  4,  1915  (38  Stat. 
1164),  known  as  the  La  Follette  Act,  materially  changes  the  above 
in  the  interest  of  seamen.  As  modified,  they  are  collected  in  title 
LIII  of  the  U.  S.  Comp.  St.  §§  S287-8392a. 

zsWope  v.  Hemenway,  1  Spr.  300,  Fed.  Cas.  No.  18.042;  Cata- 
lonia (D.  C.)  236  Fed.  554. 

2  6Bmnner,  Col.  Cas.  577,  Fed.  Cas.  No.  10,277. 

2  7  Despite  earlier  conflict  of  authority,  it  is  now  settled  that  this 
applies  not  only  to  preliminary  attachments,  but  to  garnishments  or 
supplementary  proceedings  after  judgment.  Wilder  v.  Inter-Island 
Steam  Nav.  Co.,  211  U.  S.  239,  29  Sup.  Ct.  58,  53  L.  Ed.  164,  15 
Ann.  Cas.  127. 


26  ADMIRALTY  JURISDICTION  (Ch.  2 

to  advances  in  foreign  ports,  whether  to  American  or  for- 
eign ships.28 

Under  the  practice  of  the  admiralty  courts,  a  seaman  is 
not  required  to  give  the  usual  stipulation  for  costs  when  he 
libels  a  vessel.29  But,  in  order  to  protect  the  vessel  from 
being  arrested  on  frivolous  charg-es,  the  law  requires  that, 
before  issuing  any  libel,  he  must  cite  the  master  to  appear 
before  a  commissioner  to  show  cause  why  process  should 
not  issue.  The  commissioner  thereupon  holds  a  sort  of 
preliminary  examination,  and  issues  process  if  he  thinks 
there  is  sufficient  justification  for  it.30 

The  statutes  also  contain  elaborate  provisions  for  the 
seaman's  discharge,  and  for  his  protection  in  relation  to  the 
character  of  the  vessel,  the  character  of  the  food  and  medi- 
cine furnished,  his  clothing,  etc.,  for  which  reference  must 
be  made  to  the  statutes. 

Priority  of  Lien 

Under  the  same  policy,  the  admiralty  courts  have  always 
held  that,  as  a  general  rule,  the  wages  of  seamen  constitute 
among  contract  claims  the  first  lien  upon  the  ship,  and  ad- 
here to  it  as  long  as  a  plank  is  left  afloat.31 

There  may  be  circumstances  in  which  other  liens  would 
be  preferred  to  seamen's  wages,  as  where  salvors  bring  a 
ship  in,  and  thereby  save  the  ship  for  the  seamen  as  well  as 
others ;  but  these  cases  are  exceptional,  and  cannot  be  dis- 
cussed, at  least  in  this  connection,  in  detail.32 


28  Act  March  4,  1915.  §§  4,  11  (U.  S.  Conip.  St.  §§  8322.  8323); 
Sandberg  v.  McDonald,  248  U.  S.  185,  39  Sup.  Ct.  84,  63  L.  Ed.  200; 
Neilson  v.  Rhine  Shipping  Co.,  248  U.  S.  205,  39  Sup.  Ct.  S9,  63  L. 
Ed.  208 ;    Pinna  (D.  C.)  252  Fed.  203. 

2«  Act  July  1,  1918,  c.  113,  §  1  (U.  S.  Comp.  St.  Ann.  Supp.  1919, 
§  1630a). 

»o  Rev.  St.  U.  S.  §§  4546,  4547  (U.  S.  Comp.  St.  §§  8335.  8336). 

si  Ocean  Spray,  4  Sawy.  105,  Fed.  Cas.  No.  10,412. 

82  Relf  v.  The  Marin,  1  Pet.  Adni.  186,  Fed.  Cas.  No.  11,692.  See 
poet,  pp.  380.  393. 


§§  8-10)  CONTRACTS  OF   SEAMEN  27 

Enforcing  Obedience 

In  one  respect  the  contracts  of  seamen  vary  materially 
from  ordinary  contracts.  The  general  rule  in  the  usual 
contracts  of  hiring  is  that  suit  or  discharge  is  the  only  rem- 
edy for  its  violation.  On  the  other  hand,  the  importance  of 
preserving  discipline  upon  a  vessel,  and  of  performing  the 
services  necessary  for  her  protection,  and  for  the  protection 
even  of  life,  justified  the  master,  under  the  law  as  it  long 
prevailed,  in  using  physical  force  to  a  reasonable  extent  in 
order  to  enforce  obedience.  He  could  inflict  blows  for  the 
purpose  of  compelling  obedience  to  an  order,  or  put  muti- 
nous seamen  in  irons  or  in  confinement  as  a  punishment,  or 
forfeit  their  wages  for  misconduct.  In  fact,  under  exception- 
al circumstances  of  aggravation,  he  might  take  life.  But  the 
other  officers  of  the  ship  could  not  punish  for  past  offenses. 
They  could  only  use  a  reasonable  amount  of  force  to  com- 
pel obedience.33 

But  under  the  recent  legislation  all  forms  of  corporal 
punishment  are  prohibited,  and  the  only  punishment  that 
the  master  can  inflict  for  disobedience  of  orders  is  to  put 
the  seaman  in  irons  till  the  disobedience  ceases,  or  put  him 
on  bread  and  water  for  a  limited  time.  He  can  no  longer 
have  a  deserter  apprehended,  but  the  only  punishment  for 
desertion  is  total  or  partial  forfeiture  of  wages  and  effects.34 

Seamen  of  Foreign  Vessel 

As  a  rule,  the  court  will  not  take  jurisdiction  in  contro- 
versies between  the  seamen  of  a  foreign  ship  and  her  mas- 
ter or  the  ship.  Many  of  the  countries  have  express  treaty 
stipulations  giving  sole  cognizance  of  these  disputes  to  their 

S3  tj.  S.  v.  Alden,  1  Spr.  95,  Fed.  Cas.  No.  14,427;  Relf  v.  The 
Maria,  1  Pet.  Adm.  186,  Fed.  Cas.  No.  11,G92 ;  Turner's  Case,  1 
Ware,  77,  Fed.  Cas.  No.  14,248;  Macoinber  v.  Thompson,  1  Sunin. 
384,  Fed.  Cas.  No.  8,919 ;  ROBERTSON  v.  BALDWIN,  165  U.  S.  275, 
17  Sup.  Ct.  326,  41  L.  Ed.  715 ;    Stout  v.  Weedin  (D.  C.)  95  Fed.  1001. 

b*  Act  March  4,  1915,  c.  153,  §  9,  38  Stat.  1167  (U.  S.  Corap.  St.  § 
8391) ;   Ex  parte  Larsen  (D.  C.)  233  Fed.  708. 


28  ADMIRALTY  JURISDICTION  (Ch.  2 

consuls.  In  cases  where  such  a  treaty  exists,  the  court 
will  not  interfere  at  all.35 

In  cases  where  there  is  no  treaty  expressly  forbidding 
it,  the  courts  have  discretion  whether  to  take  jurisdiction 
or  not,  but  they  will  not  take  jurisdiction  unless  under  ex- 
treme circumstances  of  cruelty  or  hardship.36 

In  considering  this  question,  the  sailors  are  presumed 
to  be  of  the  same  nationality  as  the  ship,  no  matter  what 
their  actual  nationality.37 

When  the  court  takes  jurisdiction  under  such  circum- 
stances, it  applies  by  comity  the  law  of  the  vessel's  flag".38 

MASTER'S  RIGHT  TO  PROCEED  IN  REM  FOR  HIS 

WAGES 

11.  Under  the  general  admiralty  law,  the  master  has  no 
right  to  proceed  in  rem  for  wages.  Whether  he 
has  when  a  state  statute  purports  to  give  it  is  un- 
settled. 

The  master  is  not  allowed,  under  the  general  admiralty 
law,  to  proceed  against  the  vessel  either  for  his  wages  or 
any  disbursements  that  he  may  make  on  her  behalf. 

One  reason  assigned  for  this  exception  is  that  the  master 
does  not  need  such  a  remedy,  as  he  may  pay  himself  out 
of  the  freight  money.  But  the  difficulty  about  this  is  that 
he  docs  not  always  have  the  right  to  collect  it,  and,  in  fact, 
under  modern  conditions,  very  rarely  has  that  right. 

A  better  reason  is  his  relation  to  the  ship.  He  is  the 
trustee  or  representative  of  the  owners  in  distant  ports. 

so  Montapedia  (D.  C.)  14  Fed.  427;    Albergen  (D.  C.)  223  Fed.  443. 

seBKUiKNLAND,  114  U.  S.  355,  5  Sup.  Ct.  S60,  29  L.  Ed.  152; 
Albanl  (D.  C.)  169  Fed.  220. 

37  in  re  Ross,  140  U.  S.  454,  11  Sup.  Ct.  897,  35  L.  Eld.  5S1 ;  Ester 
(D.  C.)  190  Fed.  216. 

saBeMdere  (D.  C.)  90  Fed.  106;  Hannington  Court  (D.  C.)  252 
Fed.  211. 


§11)     master's  right  to  PROCEED  E\t  rem  for  wages       29 

The  law  looks  to  him  to  protect  their  interests,  and  they 
have  the  right  to  assume  that  he  will  protect  their  inter- 
ests. When  a  ship  herself  is  sued,  process  is  served  upon 
her  alone,  or  her  master,  and  not  upon  her  owners.  In  such 
case  the  master  is  their  representative  for  the  very  purpose 
of  protecting-  the  ship  and  safeguarding  their  interests. 
Hence,  if  he  were  allowed  to  sue  his  own  vessel,  he  might 
confiscate  her  at  the  very  time  when  they  think  he  is  pro- 
tecting her,  and  so  he  has  no  right  to  proceed  against  the 
ship  which  is  intrusted  to  him  to  protect.39 

It  is  a  more  difficult  question  whether  a  state  statute  can 
give  a  master  a  right  of  action  against  the  ship.  In  the 
Raleigh  Case,  just  cited,  Judge  Hughes  held  that  it  could 
not.  The  principle  as  to  the  effect  of  state  statutes  is 
that,  if  a  contract  is  maritime  in  its  nature,  a  state  statute 
can  add  to  it  the  additional  remedy  of  a  lien,  and  the  feder- 
al courts  will  enforce  it.  Hence,  if  the  claim  of  the  master 
is  maritime  under  the  principles  of  general  admiralty  law, 
it  would  seem  that  a  state  statute  could  add  to  the  right 
which  he  would  then  have  to  sue  in  personam  the  addition- 
al right  of  proceeding  against  the  vessel  in  rem.  There 
was  some  wavering  on  the  question  whether  he  can  pro- 
ceed even  in  personam.40  But  it  is  now  settled  that  the 
contract  is  maritime,  which  would  give  him  the  right  to 
proceed  in  personam. 

In  the  Mary  Gratwick,41  where  a  statute  of  California 
purported  to  give  the  master  a  lien,  Judge  Hoffman  held 
that  his  contract  was  maritime,  and  that,  therefore,  the 
statute  could  give  the  right  of  procedure  in  rem. 

The  fact  that  the  contract  is  maritime  is  settled  by  the 

§11.  so  Raleigh,  2  Hughes,  44,  Fed.  Cas.  No.  11,539;  Grand 
Turk,  1  Paine,  73,  Fed.  Cas.  No.  5,683. 

40  Grand  Turk,  1  Paine,  73,  Fed.  Cas.  No.  5,6S3 ;  Hammond  v. 
Essex  Fire  &  Marine  Ins.  Co.,  4  Mason,  196,  Fed.  Cas.  No.  6,001. 

*i  Fed.  Cas.  No.  17,591. 


30  ADMIRALTY  JURISDICTION  (Cll.  2 

William  M.  Hoag.42  There  a  master  had  proceeded  against 
a  vessel  under  a  statute  of  Oregon  purporting  to  give  him 
the  lien.  District  Judge  Bellinger  had  held  that  he  was  en- 
titled to  hold  the  vessel.43  Thereupon  an  appeal  was  taken 
direct  to  the  Supreme  Court  under  the  clause  of  the  appel- 
late court  act  giving  such  appeal  on  questions  of  jurisdic- 
tion. It  was  contended  that  whether  the  master  had  a 
lien  for  his  wages  was  a  question  of  jurisdiction.  The 
case  was  heard  along  with  that  of  the  Resolute.4*  Mr.  Jus- 
tice Brown  therefore  found  it  necessary  to  discuss  exactly 
what  constitutes  jurisdiction.  He  held  that:  "Jurisdiction 
is  the  power  to  adjudicate  a  cause  upon  the  merits,  and 
dispose  of  it  as  justice  may  require.  As  applied  to  a  suit 
in  rem  for  a  breach  of  a  maritime  contract,  it  presupposes 
— First,  that  the  contract  sued  upon  is  a  maritime  con- 
tract ;  and,  second,  that  the  property  proceeded  against  is 
within  the  lawful  custody  of  the  court.  These  are  the  only 
requirements  to  give  jurisdiction.  Proper  cognizance  of 
the  parties  and  subject-matter  being  conceded,  all  other 
matters  belong  to  the  merits."  The  opinion  of  the  Supreme 
Court,  therefore,  settles  that  the  contract  is  maritime,  which 
required  an  affirmance  of  the  decree  of  the  District  Court 
without  passing  upon  the  question  whether  the  state  stat- 
ute could  create  the  additional  lien. 

Under  the  principles  laid  down  in  the  J.  E.  RUMBELL,45 
it  seems  that  state  statutes  could  have  this  effect,  though  in 
that  case  the  question  whether  it  could  have  such  an  effect 
as  to  a  claim  of  the  master  for  wages  was  expressly  re- 
served, in  fact,  these  two  cases  show  that  the  Supreme 
Court  is  reluctant  to  sustain  such  a  lien,  on  account  of  the 
inconvenience  and  abuses  to  which  it  may  give  rise. 

42  168  U.  S.  443,  18  Sup.  Ct  114,  42  L.  Ed.  537.     See,  also,  Union 
Fish  Co.  v.  Erickson,  24S  U.  S.  30S,  30  Sup.  Ct.  112,  63  L..  Ed.  261. 
"  (D.  C.)  69  Fed.  742. 

44  168  U.  S.  437,  IS  Sup.  Ct  112,  42  L.  Ed.  533. 
4  5 148  U.  S.  1,  13  Sup.  Ct.  408,  37  L.  Ed.  345. 


§§  12-19)  PILOTAGE  31 

The  English  statutes  give  the  master  such  a  lien,  both 
for  wages  and  disbursements.40 

PILOTAGE 

12.  A  pilot  is  a  person  who,  in  consequence  of  his  special 

knowledge  of  the  waters,  has  charge  of  the  han- 
dling of  a  vessel. 

13.  State  pilot  laws  are  constitutional. 

14.  The  skill  required  of  a  pilot  is  the  ordinary  care  of  an 

expert  in  his  profession. 

15.  When  in  charge  of  navigation,  he  supersedes  the  mas- 

ter. 

16.  Under  the  American  decisions  the  vessel  is  liable  for 

his  negligence,  though  he  is  a  compulsory  pilot. 

17.  He  is  liable  for  negligence. 

18.  The  ordinary  forms  of  pilot  associations  are  not  liable 

for  the  acts  of  one  of  their  members. 

19.  In  America  admiralty  courts  have  jurisdiction  of  suits 

against  pilots. 

The  word  "pilot'''  is  used  in  admiralty  in  reference  to  two 
classes.  He  may  be  a  regular  member  of  the  crew,  or  he 
may  be  taken  aboard  simply  to  conduct  a  vessel  in  or  out  of 
port.  The  nature  of  his  duties  is  in  each  case  about  the 
same.  He  is  supposed  to  know  specially  the  waters 
through  which  the  vessel  navigates,  and  to  conduct  her 
safely  through  them.  The  importance  of  his  duties,  there- 
fore, is  only  second  to  that  of  the  master.  In  fact,  the 
courts  have  frequently  looked  upon  him  as  practically 
charged  with  the  same  responsibility  as  the  master. 

46  Morgan  v.  Castlegate  S.  S.  Co.,  [1893]  A.  C.  3S ;  Rupert  City 
(D.  C.)  213  Fed.  263. 


32  ADMIRALTY  JURISDICTION  ( Ch.  2 

Validity  of  State  Pilot  Laws 

Most  of  the  states  bordering  on  navigable  waters  have 
passed  laws  regulating  the  business  of  pilotage,  and  render- 
ing it  obligatory  upon  a  vessel  to  take  a  pilot,  or  pay  the 
pilotage  fees,  though  the  master  of  the  vessel  may  himself 
be  familiar  with  the  waters,  and  not  need  assistance  in 
taking  his  ship  to  port.  The  compulsory  nature  of  these 
laws  has  been  often  criticized,  but  they  are  based  upon 
reasons  of  sound  public  policy.  Unless  pilotage  is  com-' 
pulsory,  the  occupation  would  not  be  sufficiently  remunera- 
tive to  induce  men  of  skill  and  character  to  engage  in  it. 
It  is  like  other  numerous  kinds  of  expenses  in  modern 
business  where  people  must  pay  when  no  direct  service  is 
rendered,  in  order  to  support  a  class  of  men  who  can  ren- 
der that  service  best.  It  is  similar  to  the  payment  of  taxes 
in  order  to  support  police  and  fire  departments,  though  the 
individuals  who  pay  them  may  never  be  robbed  or  have 
their  houses  burned ;  for  a  moment  may  come  when  any 
one  of  them  may  need  such  protection. 

In  COOLEY  v.  BOARD  OF  WARDENS  OF  PORT 
OF  PHILADELPHIA47  the  court  says:  "Like  other 
laws,  they  are  framed  to  meet  the  most  usual  cases — quae 
frequentius  accidunt.  They  rest  upon  the  propriety  of 
securing  lives  and  property  exposed  to  the  perils  of  a  dan- 
gerous navigation  by  taking  on  board  a  person  peculiarly 
skilled  to  encounter  or  avoid  them ;  upon  the  policy  of  dis- 
couraging the  commanders  of  vessels  from  refusing  to 
receive  such  persons  on  board  at  the  proper  times  and 
places ;  and  upon  the  expediency,  and  even  intrinsic  justice, 
of  not  suffering  those  who  have  incurred  labor,  and  ex- 
pense, and  danger  to  place  themselves  in  a  position  to  ren- 
der important  service  generally  necessary,  to  go  unreward- 
ed, because  the  master  of  a  particular  vessel  either  rashly 
refuses  their  proffered  assistance,  or,  contrary  to  the  gen- 
eral experience,  does  not  need  it.    There  arc  many  cases  in 

§§  12-19.     "  12  How.  290,  13  L.  Ed.  996. 


§§  12-19)  PILOTAGE  33 

which  an  offer  to  perform,  accompanied  by  present  ability 
to  perform,  is  deemed  by  law  equivalent  to  performance. 
The  laws  of  commercial  states  and  countries  have  made  an 
offer  of  pilotage  service  one  of  those  cases;  and  we  can- 
not pronounce  a  law  which  does  this  to  be  so  far  removed 
from  the  usual  and  fit  scope  of  laws  for  the  regulation  of 
pilots  and  pilotage  as  to  be  deemed  for  this  cause  a  covert 
attempt  to  legislate  upon  another  subject  under  the  ap- 
pearance of  legislating  on  this  one." 

In  the  China  4S  the  court  said :  "It  is  necessary  that  both 
outward  and  inward  bound  vessels  of  the  classes  desig- 
nated in  the  statute  should  have  pilots  possessing  full 
knowledge  of  the  pilot  grounds  over  which  they  are  to  be 
conducted.  The  statute  seeks  to  supply  this  want,  and 
to  prevent,  as  far  as  possible,  the  evils  likely  to  follow  from 
ignorance  or  mistake  as  to  the  qualifications  of  those  to  be 
employed,  by  providing  a  body  of  trained  and  skillful  sea- 
men, at  all  times  ready  for  the  service,  holding  out  to  them 
sufficient  inducements  to  prepare  themselves  for  the  dis- 
charge of  their  duties,  and  to  pursue  a  business  attended 
with  so  much  of  peril  and  hardship." 

These  pilotage  laws  are  among  the  state  statutes  relat- 
ing to  vessels  which  have  been  upheld  as  not  in  conflict 
with  the  clause  of  the  federal  constitution  conferring  on 
congress  the  exclusive  right  to  regulate  interstate  and  for- 
eign commerce.49  The  theory  of  these  decisions  is  that 
such  laws  affect  commerce  incidentally,  and  are  valid  un- 
til   congress    legislates   on    the    subject. 

The  leading  case  on  the  subject  is  COOLEY  v.  BOARD 
OF  WARDENS  OF  PORT  OF  PHILADELPHIA.50 

4§7  Wall.  53,  19  L.  Ed.  67. 

4  9  Article  1,  §  8,  el.  3. 

bo  12  How.  299,  13  L.  Ed.  996.     See,  also,  Olsen  v.  Smith.  195  U. 
S.  332,  25  Sup.  Ct.  52,  49  L.  Ed.  224 ;   Thompson  v.  Darden,  19S  U.  S. 
310,  25  Sup.  Ct.  660,  49  L.  Ed.  1064. 
Hughes,Adm.  (2d  Ed.) — 3 


34  ADMIRALTY  JURISDICTION  (Ch.  2 

Skill  Required  of  Pilot 

Since  a  pilot  hires  himself  out  as  an  expert,  and  is  em- 
ployed because  he  is  an  expert,  the  measure  of  care  requir- 
ed of  him  is  a  high  one.  Some  of  the  cases  go  so  far  as  to 
say  that  his  liability  is  as  great  as  that  of  a  common  car- 
rier, but  the  contract  of  pilotage  is,  after  all,  one  of  mere 
hiring,  and  the  duty  required  of  him  is  simply  the  ordi- 
nary care  required  of  any  servant.  This  ordinary  care, 
however,  varies  with  the  character  of  the  employment,  so 
that  the  ordinary  care  required  of  an  expert  is  much  high- 
er than  the  ordinary  care  required  of  a  simple  driver  of  a 
land  vehicle.  The  pilot's  liability  is  for  ordinary  care,  but 
that  means  the  ordinary  care  of  an  expert  in  his  profession. 
While  he  is  not  liable  for  mere  errors  of  judgment,  he  is 
liable  for  any  accident  that  care  and  attention  and  an  in- 
telligent knowledge  of  the  locality  with  which  he  profess- 
es familiarity  might  prevent.  He  is  supposed  to  know  the 
currents,  the  channel,  and  all  special  difficulties  connected 
therewith,  except  unknown  and  sudden  obstructions  which 
he  could  not  find  out  by  intelligent  attention.  He  is  sup- 
posed to  know  how  to  cross  the  bar,  and  when  it  is  the 
proper  time  to  cross  it.51 

In  ATLEE  v.  NORTHWESTERN  UNION  PACKET 
CO.r'2  the  court  lays  down  the  following  as  the  knowledge 
required  of  a  river  pilot: 

"The  character  of  the  skill  and  knowledge  required  of  a 
pilot  in  charge  of  a  vessel  on  the  rivers  of  the  country  is 
very  different  from  that  which  enables  a  navigator  to  carry 
his  vessel  safely  on  the  ocean.  In  this  latter  case  a  knowl- 
edge of  the  rules  of  navigation,  with  charts  which  disclose 
the  places  of  hidden  rocks,  dangerous  shores,  or  other  dan- 
of  the  way,  are  the  main  elements  of  his  knowledge 

51  Guy  v.  Donald,  157  Fed.  527,  S5  C.  C.  A.  291,  14  L.  K.  A.  (N.  S.) 

Till,  t3  Ami.  Cas.  947;    Dora  Allison  m.  C.)  21o  Fed.  645. 

52  21  Willi.  389,  22  I..  Ed.  »',i!>;  Harrison  v.  Hughes,  125  Fed.  8G0, 
60  C.  ('.  A.  142. 


§§  12-19)  PILOTAGE  35 

and  skill,  guided  as  he  is  in  his  course  by  the  compass,  by 
the  reckoning  and  the  observations  of  the  heavenly  bodies, 
obtained  by  the  use  of  proper  instruments.  It  is  by  these 
he  determines  his  locality,  and  is  made  aware  of  the  dan- 
gers of  such  locality,  if  any  exist.  But  the  pilot  of  a  river 
steamer,  like  the  harbor  pilot,  is  selected  for  his  personal 
knowledge  of  the  topography  through  which  he  steers  his 
vessel.  In  the  long  course  of  a  thousand  miles  in  one  of 
these  rivers  he  must  be  familiar  with  the  appearance  of  the 
shore  on  each  side  of  the  river  as  he  goes  along.  Its  banks, 
towns,  its  landings,  its  houses  and  trees,  and  its  openings 
between  trees,  are  all  landmarks  by  which  he  steers  his 
vessel.  The  compass  is  of  little  use  to  him.  He  must  know 
where  the  navigable  channel  is  in  its  relation  to  all  these  ex- 
ternal objects,  especially  in  the  night.  He  must  also  be 
familiar  with  all  dangers  that  are  permanently  located  in 
the  course  of  the  river,  as  sand  bars,  snags,  sunken  rocks 
or  trees,  or  abandoned  vessels  or  barges.  All  this  he  must 
know  and  remember  and  avoid.  To  do  this  he  must  be  con- 
stantly informed  of  changes  in  the  current  of  the  river,  of 
sand  bars  newly  made,  of  logs,  or  snags,  or  other  objects 
newly  presented,  against  which  his  vessel  might  be  injur- 
ed. In  the  active  life  and  changes  made  by  the  hand  of  man 
or  the  action  of  the  elements  in  the  path  of  his  vessel,  a 
year's  absence  from  the  scene  impairs  his  capacity — his 
skilled  knowledge — very  seriously  in  the  course  of  a  long 
voyage.  He  should  make  a  few  of  the  first  'trips'  as  they 
are  called,  after  his  return,  in  company  with  other  pilots 
more  recently  familiar  with  the  river. 

"It  may  be  said  that  this  is  exacting  a  very  high  order 
of  ability  in  a  pilot.  But  when  we  consider  the  value  of 
the  lives  and  property  committed  to  their  control — for  in 
this  they  are  absolute  masters — the  high  compensation  they 
receive,  and  the  care  which  Congress  has  taken  to  secure 
by  rigid  and  frequent  examinations  and  renewal  licenses 
this  very  class  of  skill,  we  do  not  think  we  fix  the  standard 
very  high." 


36  ADMIRALTY   JURISDICTION  (Ch.  2 

In  the  Oceanic  53  the  court  says :  "A  licensed  pilot,  who 
undertakes  to  take  a  ship,  with  sails  up,  through  a  channel 
such  as  that  leading  over  the  bar  of  the  St.  Johns  river, 
Fla.,  should  know  the  channel,  its  depths,  shoals,  and  the 
changes  thereof,  and  should  be  charged  with  negligence  if 
he  fails  to  skillfully  direct  the  course  of  the  ship,  and  give 
proper  supervision  and  direction  to  the  navigation  of  the 
tug  which  is  towing  her." 

Relative  Duties  of  Pilot  and  Master 

When  a  pilot  comes  aboard,  it  is  often  a  difficult  question 
to  say  what  are  his  duties  and  those  of  the  master  in  con- 
nection with  the  navigation.  No  ship  is  large  enough  for 
two  captains.  It  may  be  said,  in  general,  that  the  pilot 
has  charge  of  the  navigation,  including  the  course  to  steer, 
the  time,  place,  and  method  of  anchorage,  and,  in  general, 
the  handling  of  the  ship.  The  master  must  not  interfere 
unless  the  pilot  is  plainly  reckless  or  incompetent.  Then 
he  must  take  charge  himself.  In  fact,  in  many  cases  the 
pilot  is  spoken  of  as  the  temporary  master.  On  their  rela- 
tive duties  the  Supreme  Court  says:54  "Now,  a  pilot,  so 
far  as  respects  the  navigation  of  the  vessel  in  that  part  of 
the  voyage  which  is  his  pilotage  ground,  is  the  temporary 
master,  charged  with  the  safety  of  the  vessel  and  cargo, 
and  of  the  lives  of  those  on  board,  and  intrusted  with  the 
command  of  the  crew.  He  is  not  only  one  of  the  persons 
engaged  in  navigation,  but  he  occupies  a  most  important 
and  responsible  place  among  those  thus  engaged."  55 

The  master  however  may  and  should  call  the  attention  of 

58  20  C.  C.  A.  ."4.  74  Fed.  G42.  See,  also,  Saluda,  Fed.  Cas. 
No.  17,232;  SIDERACUDI  v.  MAPES  ID.  C.)  3  Fed.  S73;  Com- 
pazine de  Navigation  Francaise  v.  Burley  (D.  C.)  1S3  Fed.  166; 
Burley  v.  Compagnie  de  Navigation  Francaise,  104  Fed.  335,  115  C. 
C.  A.  199. 

B*COOLEY  v.  BOARD  OF  WARDENS  OF  PORT  OF  PHILA- 
DELPHIA. 12  How.  316,  13  L.  Ed.  1003. 

so  See,  also.  Oregon,  15S  U.  S.  194.  195,  15  Sup.  Ct.  804,  39  L. 
Ed.  94::;    MARCELLUS,  1  Cliff.  481,  Fed.  Cas,  No.  ii,347. 


§§    12-19)  PILOTAGE  37 

§the  pilot  to  dangers  which  seem  to  have  escaped  the  lat- 
ter's  attention.56 

Liability  of  Vessel  for  Acts  of  Pilot 

In  one  respect  the  decisions  in  relation  to  pilots  run 
'  counter  to  common-law  ideas  on  the  subject  of  agency.  It 
is  a  principle  of  the  law  of  agency  that  the  foundation  of 
the  master's  responsibility  for  the  acts  of  his  agent  is  the 
right  of  selection  and  control.  Yet  the  American  courts 
hold  that  a  vessel  is  responsible  to  third  parties  for  inju- 
ries arising  from  the  negligence  of  the  pilot,  though  he 
came  on  board  against  the  will  of  the  master,  under  a  state 
statute  of  compulsory  pilotage.57 

The  English  law  was  long  different.  But  by  Pilotage  Act 
1913,  §  15,  the  ship  is  made  liable,  though  in  charge  of  a  com- 
pulsory pilot.* 

A  pilot  law  is  not  considered  compulsory,  if  the  only  pen- 
alty imposed  is  the  payment,  of  the  pilotage  fee.58 

The  reason  why  the  vessel  is  held  liable  is  that  admiral- 
ty looks  on  the  vessel  itself  as  a  responsible  thing,  and 
that  under  the  ancient  laws  relating  to  pilots  the  responsi- 
bility was  one  which  attached  to  the  vessel  itself,  irrespec- 
tive of  ownership,  it  being  thought  unjust  to  require  injur- 
ed third  parties  to  look  beyond  the  offending  thing  to  ques- 
tions of  ownership  or  control.59 

The  rationale  of  the  doctrine  excludes  the  idea  of  any 


sg  Homer  Ramsdell  Transp.  Co.  v.  Compagnie  Generate  Trans- 
atlantique  (C.  C.)  63  Fed.  S45 ;    Tactician  [1907]  P.  244. 

5  7  China,  7  Wall.  53,  19  L.  Ed.  67;  Indra  Line  v.  Palmetto  Phos- 
phate Co.,  239  Fed.  94,  152  C.  C.  A.  144. 

♦Marsden,  Coll.  (7th  Ed.)  p.  237;  Carver,  Carriage  by  Sea  (6th 
Ed.)  p.  43,  §  30a. 

5  8  Merrimae,  14  Wall.  199,  20  L.  Ed.  873  ;  Homer  Ramsdell  Transp. 
Co.  v.  La  Compagnie  Generate  Transatlantique,  182  U.  S.  406,  21  Sup. 
Ct.  831,  45  L.  Ed.  1155.     See,  also,  Dallington.  [1903]  P.  77. 

59  Tucker  v.  Alexandroff,  183  U.  S.  424,  22  Sup.  Ct.  195,  46  L.  Ed. 
264. 


38  ADMIRALTY  JURISDICTION  (Ch.  2 

personal  liability  of  the  owners  for  the  act  of  a  compulsory 
pilot.60 

A  pilot  is  liable  to  the  vessel  for  any  damage  caused  by 
carelessness  or  negligence.61 

Liability  of  Association  for  Acts  of  Individual  Pilot 

Where  state  pilot  laws  prevail,  it  is  usual  for  the  pilots 
to   organize   into   associations,   frequently   unincorporated. 
The  question  whether  the  association  would  be  liable  for 
the  negligence  of  one  of  its  members  is  a  nice  one.     It 
would  depend  upon  the  character  of  the  association.    Some 
of  them  own  no  common  property,  keep  no  common  fund, 
and  the  pilots  take  vessels  in  rotation,  and  each  pilot  takes 
the   fee  which   he   makes.     Other   associations   own   pilot 
boats  in  common,  rent  officers,  own  other  property,  keep  a 
common  fund,  pay  all  expenses,  pay  all  the  separate  fees 
collected  from  vessels  into  the  common  fund,  and  divide 
the  balance  remaining  among  the  individual  members.    On 
principle   it  would   seem   that  this  ought  to  constitute  a 
joint  liability,  and  that  the  different  members  of  such  an  as- 
sociation ought  to  be  responsible  for  the  acts  of  an  indi- 
vidual pilot.    It  would  seem  that  all  the  requisites  that  con- 
cur to  make  a  joint  liability  would  be  present  in  such  a 
case.     In   fact,  it  would  hardly  be  putting  the   case   too 
strongly  to  call  it  a  partnership,  provided  the  individuals 
composing  the  association  have  the  right  to  decide  who 
shall  be  members  of  the  association. 

In  Mason  v.  Ervine,62  Judge  Pardee,  as  circuit  judge, 
held  that  the  Louisiana  Pilots'  Association  was  not  liable 
for  the  act  of  one  of  its  members.    This  case  rather  turned 

so  Homer  Ramsdell  Transp.  Co.  v.  La  Compagnie  Generate  Trans- 
atlantique,  182  U.  S.  406,  21  Sup.  Ct.  S31,  45  L.  Ed.  1155;  Hathor 
(D.  C.)  107  Fed.  194. 

oi  SIDERACUDI  v.  MAPES  (D.  C.)  3  Fed.  873;  Guy  v.  Donald, 
157  Fed.  527,  85  C.  C.  A.  291,  14  L.  R.  A.  (N.  S.)  1114,  13  Ann.  Cas. 
947. 

02  (O.  C)  27  Fed.  459. 


§§  12-19)  PILOTAGE  39 

upon  the  special  language  of  the  Louisiana  Code,  for  the 
report  itself  does  not  show  the  provisions  or  character  of 
their  association.  In  any  event,  the  question  was  not  nec- 
essary for  the  decision  of  the  case,  as  he  held  that  the  pilot 
himself  was  not  guilty  of  any  negligence,  which  of  itself 
was  sufficient  to  dispose  of  the  case. 

In  the  City  of  Reading,63  District  Judge  McPherson  held 
that  the  Delaware  River  Pilots'  Association  was  not  re- 
sponsible for  the  negligence  of  one  of  its  members.  The 
report  does  not  fully  show  the  character  of  that  associa- 
tion, but  it  would  seem  to  be  a  mere  association  for  benev- 
olent purposes,  and  that  even  the  pilot  fees  were  not  paid 
into  a  common  treasury.  In  Guy  v.  Donald  64  the  Supreme 
Court  decided  that  the  Virginia  Pilot  Association  is  not 
such  a  partnership  or  joint  adventure  as  rendered  its  in- 
dividual members  liable  for  each  other.  The  controlling 
consideration  was  the  construction  placed  upon  the  Vir- 
ginia pilot  laws  to  the  effect  that  such  laws  did  not  give 
the  members  the  delectus  personse,  nor  the  right  of  dis- 
charge or  control. 

If  such  right  exists,  no  reason  is  perceived  why  pilots 
cannot  form  a  partnership  or  joint  adventure,  with  its 
usual  advantages  and  liabilities,  as  well  as  any  one  else.65 

Remedies  for  Pilotage 

A  pilot  may  proceed  in  rem  against  the  vessel  for  his 
fees,  though  they  are  merely  for  a  tender  of  service  which 
the  vessel  refuses  to  accept.66 

6  3  (D.  C.)  103  Fed.  696,  affirmed  City  of  Dundee,  108  Fed.  679,  47  O. 
C.  A.  5S1,  as  to  nonliability  of  association,  reserving  question  as  to 
liability  of  sbip  for  act  of  pilot.  See,  also,  Manchioneal,  243  Fed. 
SOI,  156  C.  C.  A.  313. 

6  4  203  U.  S.  399,  27  Sup.  Ct.  63,  51  L.  Ed.  245. 

es  Jones  v.  Fell,  5  Fla.  510;  Joseph  Vaccaro  (D.  C.)  180  Fed.  272 
(discussing  the  Guy  v.  Donald  decision,  203  U.  S.  399,  27  Sup.  Ct 
63,  51  L.  Ed.  245). 

eeAlzena  (D.  C.)  14  Fed.  174;  Queen,  206  Fed.  148,  124  O.  C.  A. 
214. 


40  ADMIRALTY  JURISDICTION  (Ch.  2 

It  seems  clear  on  principle  that  admiralty  has  jurisdiction 
of  suits  against  pilots  for  negligence.  The  English  deci- 
sions, however,  are  against  it.67  But  their  decisions  turn 
upon  their  special  statutes,  and  upon  doctrines  not  adopted 
by  our  courts.  There  are  many  such  cases  in  our  reports, 
though  the  question  of  jurisdiction  was  not  raised  in  some 
of  them.68 

On  principle  the  jurisdiction  is  clear.  It  would  be  diffi- 
cult to  find  a  transaction  more  maritime  in  character  than 
the  duties  of  a  pilot.  His  right  to  proceed  in  rem  is  set- 
tled, and  the  right  to  proceed  against  him  ought  to  be  as 
maritime  as  his  right  to  seize  the  vessel. 

As  will  be  seen  in  a  future  connection,  the  test  of  a  mar- 
itime tort  is  that  it  is  a  tort  occurring  on  maritime  waters. 
The  act  of  a  pilot  in  injuring  a  vessel  by  his  negligence 
measures  up  to  this  test.  Therefore  there  ought  to  be  no 
question  of  the  right  to  proceed  against  him  in  the  admi- 
ralty. 

67  Urania,  10  Wkly.  Rep.  97:  1  Mar.  Law  Cas.  (O.  S.)  156;  Alex- 
andria, L.  R.  3  A.  &  E.  574;  Flower  v.  Bradley,  44  L.  J.  Ex.  1; 
Queen  v.  Judge,  [1892]  1  Q.  B.  273. 

es  See,  as  illustrations,  SIDERACUDI  v.  MAPES  (D.  C.)  3  Fed. 
873;  WILSON  v.  PILOTS'  ASS'N  (D.  C.)  55  Fed.  1900;  Wilson  v. 
Charleston  Pilots'  Ass'n  (D.  C)  57  Fed.  227;  Strathleven  S  S.  Co. 
v.  Baulch,  244  Fed.  412,  157  C.  C.  A.  38. 


§  20)  GENERAL  AVERAGE   AND   MARINE   INSURANCE  41 

CHAPTER  III 
OF  GENERAL  AVERAGE  AND  MARINE  INSURANCE. 

20.  "General  Average"  Defined. 

21.  Requisites  of  General  Average. 

22.  "Marine  Insurance"  Defined. 

23.  Maritime  Character  of  Contracts. 

24.  Insurable  Interest. 

25.  Conditions  in  Contracts  of  Insurance. 

26.  Misrepresentation  and  Concealment. 

27.  Seaworthiness. 

28.  Deviation. 

29.  Illegal  Traffic. 

30.  The  Policy  and  Its  Provisions  as  to  Risk  and  Perils  Insured 

Against 

31.  Perils  of  the  Seas. 

32.  Barratry. 

33.  Thefts. 

34.  All  Other  Perils. 

35.  Proximate  Cause  of  Loss. 

36.  The  Loss — Total  or  Partial. 

37.  Actual  or  Constructive. 

38.  Abandonment. 

39.  Agreed  Valuation. 

40.  Subrogation  of  Insurer. 

41.  Suing  and  Laboring  Clause. 

"GENERAL  AVERAGE" DEFINED 

20.  General  average  contribution  is  a  contribution  by  all  the 
parties  in  a  sea  adventure  to  make  good  the  loss 
sustained  by  one  of  their  number  on  account  of  sac- 
rifices voluntarily  made  of  part  of  the  ship  or  cargo 
to  save  the  residue  and  the  lives  of  those  on  board 
from  an  impending  peril,  or  for  extraordinary  ex- 
penses necessarily  incurred  by  one  or  more  of  the 


4:2  GENERAL   AVERAGE   AND   MARINE    INSURANCE        (Ch.  3 

parties  for  the  general  benefit  of  all  the  interests 
embarked  in  the  enterprise.1 

Antiquity  and  N at lire 

This  is  one  of  the  earliest  known  subjects  of  maritime 
law.  It  can  be  traced  back  through  the  Roman  law  to  the 
Rhodian  law,  which  prevailed  before  Lycurgus  laid  the 
foundations  of  Spartan,  or  Solon  of  Athenian,  greatness. 

"Lege  Rhodia  cavetur  ut  si  levandse  navis  gratia  jactus 
mercium  factus  est,  omnium  contributione  sarciatur  quod 
pro  omnibus  datum  est." 

If,  in  a  storm,  the  ship  must  be  lightened  in  order  to  save 
her  and  her  contents,  and  a  part  of  the  cargo  is  thrown 
overboard  for  the  purpose,  the  ship,  her  freight  money,  and 
the  remaining  cargo  must  contribute  to  indemnify  the  own- 
er of  the  goods  sacrificed  ;  in  other  words,  the  ship  and  cargo 
are  looked  upon  as  a  single  maritime  venture,  and  the  loss 
is  averaged  on  all.  This  instance  of  general  average  by  the 
throwing  of  goods  overboard,  or  by  throwing  over  parts 
of  the  ship  for  the  same  purpose,  like  anchors,  boats,  masts, 
etc.,  is  called  "jettison."  -  But  there  are  many  other  forms. 
Suppose,  for  example,  a  master,  for  the  common  safety  of  all 
interests,  voluntarily  strands  his  vessel.  The  salvage  for 
getting  her  off  would  be  a  subject  of  general  average,  as 
also  her  value,  in  case  she  was  not  saved,  but  the  cargo  was 
saved.3 

The  principle  applies  as  among  underwriters  on  a  vessel 
not  intended  for  cargo,  as  a  tug,  or  a  vessel  in  ballast.4    Al- 

i  Quoted  from  the  STAR  OF  HOPE,  9  Wall.  203,  19  L.  Ed.  638. 
See,  also,  the  definition  in  the  Jason,  225  U.  S.  32,  32  Sup.  Ct.  562, 
56  L.  Ed.  969. 

§  20.  2  Montgomery  v.  Insurance  Co.,  [1901]  P.  D.  147;  May  v. 
Keystone  Yellow  Pine  Co.  (D.  C.)  117  Fed.  2S7. 

3  Columbian  Ins.  Co.  v.  Asliby,  13  Pet.  331,  10  L.  Ed.  186. 

i  So  decided  as  to  a  tug  by  Judge  Addison  Brown  of  New  York. 
acting  as  arbitrator  in  the  matter  of  the  Hercules,  February  11,  1903. 

As  to  vessels  in  ballast  or  without  cargo,  see  Greely  v.  Tremont 


§  20)  "general  average"  defined  43 

so  among  underwriters  on  different  interests,  where  there  is 
a  common  ownership  of  vessel  and  cargo.5 

Stranding 

Some  of  the  closest  questions  in  general  average  arise 
when  the  issue  is  whether  the  stranding  is  voluntary,  which 
would  be  a  case  of  general  average,  or  involuntary,  which 
would  be  a  peril  of  the  sea,  to  be  borne  by  the  party  who 
suffers  from  it.  A  notable  case  on  this  subject  is  Barnard 
v.  Adams,6  where  a  ship  that  had  broken  from  her  moor- 
ings in  a  storm  was  stranded  intentionally  by  the  master 
in  such  a  way  that  the  cargo  could  be  saved.  The  ground- 
ing was  inevitable,  but  the  master  chose  the  best  place  that 
he  could  reach,  instead  of  letting  her  drift. 

In  the  STAR  OF  HOPE,7  fire  was  discovered  upon  a 
vessel,  in  consequence  of  which  she  made  sail  for  the  Bay 
of  San  Antonio,  which  was  the  easiest  port  to  reach.  On 
arrival  there  she  waited  some  time  for  a  pilot  to  guide  her 
into  the  bay,  but  none  came,  and,  the  fire  increasing,  and 
destruction  being  inevitable  if  he  remained  outside,  the  mas- 
ter endeavored  to  take  her  in  himself,  having  in  his  mind 
the  risk  of  grounding  in  the  attempt.  In  doing  so  she  struck 
upon  a  reef  accidentally.  The  court  held  that  it  was  a  case 
for  general  average,  though  he  did  not  run  her  upon  that 
special  reef  intentionally,  as  he  purposely  took  the  chance 
of  grounding  in  making  harbor,  and  by  his  act  a  large  por- 
tion of  the  common  venture  was  saved. 

On  the  other  hand,  in  the  Major  William  H.  Tantum,8 
where  the  vessel  grounded  without  the  master's  intending 
to  do  so,  and  in  no  better  place  than  if  he  had  not  slipped 

Ins.  Co.,  9  Cush.  (Mass.)  415 ;  Potter  v.  Ocean  Ins.  Co.,  3  Sumn.  27, 
Fed.  Cas.  No.  11,335;  Steamship  Carrisbrook  Co.  v.  London,  [1902] 
2  K.  B.  681. 

s  Montgomery  v.  Indemnity  Mutual  Ins.  Co.,  [1902]  1  K.  B.  734. 

c  10  How.  270,  13  L.  Ed.  417 ;  Norwich  &  N.  Y.  Transp.  Co.  v. 
Insurance  Co.  of  North  America  (D.  C.)  118  Fed.  307 ;  Id.,  129  Fed. 
100G,  64  C.  C.  A.  610. 

i  9  Wall.  203,  19  L.  Ed.  638. 

s  1  C.  C.  A.  236,  49  Fed.  252. 


44  GENERAL   AVERAGE    AND   MARINE   INSURANCE        (Ch.  3 

her  cable,  and  with  no  benefit  in  the  final  result,  it  was  held 
that  general  average  could  not  be  enforced. 

REQUISITES  OF  GENERAL  AVERAGE 

21.  To  give  the  right  to  a  general  average  contribution,  the 
sacrifice 

(a)  Must  be  voluntary,  and  for  the  benefit  of  all. 

(b)  Must  be  made  by  the  master,  or  by  his  authority. 

(c)  Must  not  be  caused  by  any  fault  of  the  party  asking 

the  contribution. 

(d)  Must  be  successful. 
.    (e)   Must  be  necessary. 

The  Sacrifice  must  be  Voluntary,  and  for  the  Benefit  of  All 
If  a  mast  is  carried  away  by  a  storm,  that  is  a  peril  of  the 
sea — one  of  the  risks  which  the  ship  carries,  and  which 
she  cannot  ask  any  other  interest  to  aid  her  in  bearing.  If, 
in  consequence  of  a  storm,  and  without  negligence  on  the 
part  of  the  ship  or  her  crew,  water  reaches  the  cargo,  and 
injures  it,  that  must  be  borne  by  that  part  of  the  cargo 
alone  which  is  injured.  There  is  nothing  voluntary  about 
either  of  these  cases.  If  a  ship  springs  a  leak  at  sea,  and 
puts  into  port,  and  has  to  unload  and  afterwards  reship  the 
cargo,  the  expenses  of  repairing  the  leak  must  be  borne  by 
the  ship,  and  cannot  be  charged  as  average.  Such  a  charge 
would  be  for  the  benefit  of  the  ship  alone,  not  for  the  bene- 
fit of  all.  In  such  case  the  expense  of  handling  the  cargo 
would  not  come  into  the  average  under  the  English  deci- 
sions, but  would  under  the  American.9 

Temporary  repairs,  of  no  lasting  value  to  the  shipowner, 
and  enabling  the  vessel  to  complete  her  voyage,  are  a  prop- 
er subject  of  general  average.10 

•'STAR  (>F  HOPE,  ;»  Wall.  I'd::,  L9  L.  Ed.  638;  Hobson  v.  Lord, 
92  D.  s.  ::'.»7,  23  1;.  Ed.  613;   Svensen  v.  Wallace,  10  A.  ('.  104. 

io  Shoe  v.  Craig  <l>.  C.)  189  Fed.  227;  Shoe  v.  George  P.  Craig  & 
Co.,  I'.u  Fed.  678,  115  C.  C.  A.  72;  Congdoo  on  General  Average,  119. 


§  21)  REQUISITES   OF   GENERAL  AVERAGE  45 

On  the  same  principle,  flooding  the  compartments  of  a 
vessel,  with  the  result  of  diminishing  the  damage  to  the 
cargo,  may  be  the  subject  of  general  average.11 

In  Anglo-Argentine  Live  Stock  &  Produce  Agency  v. 
Temperley  Shipping  Co.,12  there  was  a  deck  cargo  of  live 
stock  to  be  carried  from  Buenos  Ayres  to  Deptford  under  a 
contract  which  required  that  the  ship  should  not  call  at  any 
Brazilian  port  before  landing  her  live  stock,  the  reason  be- 
ing that,  if  she  did,  the  cattle  could  not  be  landed  in  the 
United  Kingdom.  After  sailing,  the  ship  sprang  a  leak, 
and  the  master,  for  the  safety  of  all  concerned,  put  back  to 
Bahia.  Consequently  the  cattle  could  not  be  landed  in 
England,  and  had  to  be  sold  elsewhere  at  a  loss.  It  was 
held  that  this  loss  was  a  proper  subject  of  general  average. 

In  Iredale  v.  China  Traders'  Ins.  Co.,13  a  cargo  of  coal  on 
a  voyage  from  Cardiff  to  Esquimault  became  heated,  so  that 
the  master  had  to  put  into  a  port  of  refuge,  and  land  the 
coal.  On  landing  a  survey  was  held  upon  it,  and  it  was 
found  incapable  of  being  reloaded,  and  hence  was  sold. 
Thereupon  the  voyage  was  abandoned,  and  the  freight  was 
lost.  The  freight  underwriters  claimed  that  under  these 
circumstances  freight  should  be  the  subject  of  general  av- 
erage, but  the  court  held  otherwise,  as  the  coal  had  really 
become  worthless,  not  from  any  act  of  the  master  in  going 
into  port,  but  from  internal  causes,  and  therefore  it  was  not 
a  voluntary  sacrifice. 

It  must  be  Made  by  the  Master,  or  by  his  Authority 

The  powers  of  the  captain  are  necessarily  extended.  His 
owners  may  be  scattered,  or  inaccessible.  He  may  not 
know  who  are  the  owners  of  the  cargo.     His  voyage  may 

11  Wordsworth  (D.  C.)  S8  Fed.  013. 

12  [1899]  2  Q.  B.  403. 

is  [1S99]  2  Q.  B.  356;  Id.,  [1900]  2  Q.  B.  515.  See,  also.  Green- 
shields  v.  Stephens,  [1908]  A.  C.  431  (allowed  for  damage  caused  by 
water  to  other  cargo ;  water  having  been  used  by  master's  consent 
in  extinguishing  the  fire). 


46  GENERAL  AVERAGE   AND  MARINE   INSURANCE       (Ch.  3 

extend  around  the  globe,  where  communication  is  impossi- 
ble. Hence  he  has,  ex  necessitate  rei,  powers  unknown  to 
any  other  agent.  He  can  bind  the  ship  and  owners  for 
necessary  funds  to  complete  the  voyage.  He  can  often  sell 
part  of  the  cargo  to  raise  funds  for  the  same  purpose.  He 
can  give  bottomry  or  respondentia  bonds  with  the  same 
object.  He  must  communicate  with  the  parties  interested, 
if  reasonably  practicable,1'4  but  there  is  a  strong  presump- 
tion in  favor  of  a  discretion  honestly  exercised  by  him.15 

But  he  alone  has  such  powers,  and  his  right  to  incur  a 
general  average  charge  is  limited  to  his  own  ship  and  her 
own  cargo. 

In  the  J.  P.  Donaldson,16  the  master  of  a  tug,  which  had 
a  tow  of  barges,  voluntarily  cast  them  off  in  a  storm  to  save 
his  tug.  The  owners  of  the  barges  libeled  the  tug  for  an 
average  contribution,  the  tug  having  been  saved,  and  the 
barges  lost.  The  court  held  that  it  was  not  a  case  for  gen- 
eral average,  as  the  barges  did  not  occupy  the  relation  to 
the  tug  which  the  cargo  occupies  to  a  ship,  and  the  master 
of  the  tug  did  not  hold  to  them  the  relation  which  the  mas- 
ter of  a  ship  holds  to  her  cargo. 

In  RALLI  v.  TROOP,17  a  ship  which  had  caught  on  fire 
was  scuttled  by  the  municipal  authorities  of  the  port,  and 
became  a  total  loss;  but  it  resulted  in  saving  the  cargo. 
The  court  held  that  the  loss  of  the  ship  could  not  be  charged 
against  the  cargo  in  general  average,  for  the  reason  that 
it  was  the  act  of  strangers,  and  not  of  the  master.  The 
learned  opinion  of  Mr.  Justice  Gray  may  be  specially  rec- 

14  Julia  Blake,  107  U.  S.  418,  2  Sup.  Ct.  692.  27  L.  Ed.  595;  Shoe 
v.  Craig  (D.  C.)  1S9  Fed.  227;  Shoe  v.  George  F.  Craig  &  Co.,  194 
Fed.  679,  115  C.  C.  A.  72. 

16W111COX  Pecfe  &  Hughes  v.  American  Smelting  &  Refining  Co. 
(D.  C.)  210  Fed.  89. 

ic  1G7  U.  S.  599,  17  Sup.  Ct.  951,  42  L.  Ed.  292. 

it  157  U.  S.  38G,  15  Sup.  Ct.  657,  39  L.  Ed.  742.  See,  also,  Minne- 
apolis, St  P.  &  S.  S.  S.  Co.  v.  Manistee  Transit  Co.  (D.  C.)  156 
Fed  424. 


§  21)  REQUISITES   OF   GENERAL  AVERAGE  47 

ommended  as  an  epitome  of  our  law  on  the  subject.  He 
summarizes  his  conclusions  thus : 

''The  law  of  general  average  is  part  of  the  maritime  law, 
and  not  of  the  municipal  law,  and  applies  to  maritime  ad- 
ventures only. 

"To  constitute  a  general  average  loss,  there  must  be  a 
voluntary  sacrifice  of  part  of  a  maritime  venture,  for  the 
purpose,  and  with  the  effect,  of  saving  the  other  parts  of 
the  adventure  from  an  imminent  peril  impending  over  the 
whole. 

'The  interests  so  saved  must  be  the  sole  object  of  the 
sacrifice,  and  those  interests  only  can  be  required  to  con- 
tribute to  the  loss.  The  safety  of  property  not  included  in 
the  common  adventure  can  neither  be  an  object  of  the  sac- 
rifice nor  a  ground  of  contribution. 

"As  the  sacrifice  must  be  for  the  benefit  of  the  common 
adventure,  and  of  that  adventure  only,  so  it  must  be  made 
by  some  one  specially  charged  with  the  control  and  the 
safety  of  that  adventure,  and  not  be  caused  by  the  compul- 
sory act  of  others,  whether  private  persons  or  public  au- 
thorities. 

"The  sacrifice,  therefore,  whether  of  ship  or  cargo,  must 
be  by  the  will  or  act  of  its  owner,  or  of  the  master  of  the 
ship,  or  other  person  charged  with  the  control  and  protec- 
tion of  the  common  adventure,  and  representing  and  acting 
for  all  the  interests  included  in  that  adventure,  and  those 
interests  only. 

"A  sacrifice  of  vessel  or  cargo  by  the  act  of  a  stranger  to 
the  adventure,  although  authorized  by  the  municipal  law  to 
make  the  sacrifice  for  the  protection  of  its  own  interests, 
or  of  those  of  the  public,  gives  no  right  of  contribution, 
either  for  or  against  those  outside  interests,  or  even  as  be- 
tween the  parties  to  the  common  adventure. 

"The  port  authorities  are  strangers  to  the  maritime  ad- 
venture, and  to  all  the  interests  included  therein.  They 
are  in  no  sense  the  agents  or  representatives  of  the  parties 


48  GENERAL   AVERAGE   AND   MARINE    INSURANCE        (Ch.  3 

to  that  adventure,  either  by  reason  of  any  implied  contract 
between  those  parties,  or  of  any  power  conferred  by  law 
over  the  adventure  as  such. 

"They  have  no  special  authority  or  special  duty  in  re- 
gard to  the  preservation  or  the  destruction  of  any  vessel 
and  her  cargo,  as  distinct  from  the  general  authority  and 
the  general  duty  appertaining  to  them  as  guardians  of  the 
port,  and  of  all  the  property,  on  land  or  water,  within  their 
jurisdiction. 

"Their  right  and  duty  to  preserve  or  destroy  property, 
as  necessity  may  demand,  to  prevent  the  spreading  of  a 
fire,  is  derived  from  the  municipal  law,  and  not  from  the  law 
of  the  sea. 

"Their  sole  office  and  paramount  duty,  and,  it  must  be 
presumed,  their  motive  and  purpose,  in  destroying  ship  or 
cargo  in  order  to  put  out  a  fire,  are  not  to  save  the  rest  of 
a  single  maritime  adventure,  or  to  benefit  private  individu- 
als engaged  in  that  adventure,  but  to  protect  and  preserve 
all  the  shipping  and  property  in  the  port  for  the  benefit  of 
the  public. 

"In  the  execution  of  this  office,  and  in  the  performance  of 
this  duty,  they  act  under  their  official  responsibility  to  the 
public,  and  are  not  subject  to  be  controlled  by  the  owners 
of  the  adventure,  or  by  the  master  of  the  vessel  as  their 
representative. 

"In  fine,  the  destruction  of  the  J.  W.  Parker  by  the  act 
of  the  municipal  authorities  of  the  port  of  Calcutta  was  not 
a  voluntary  sacrifice  of  part  of  a  maritime  adventure  for 
the  safety  of  the  rest  of  that  adventure,  made,  according  to 
the  maritime  law,  by  the  owners  of  vessel  or  cargo,  or  by 
the  master  as  the  agent  and  representative  of  both.  But 
it  was  a  compulsory  sacrifice,  made  by  the  paramount  au- 
thority of  public  officers  deriving  their  powers  from  the  mu- 
nicipal law,  and  tin-  municipal  law  only;  and  therefore  nei- 
ther gave  any  right  of  action,  or  of  contribution,  against 
the  owners  of  property  benefited  by  the  sacrifice,  but  not 


§  21)         REQUISITES  OF  GENERAL  AVERAGE  49 

included  in  the  maritime  adventure,  nor  yet  any  right  of 
contribution  as  between  the  owners  of  the  different  inter- 
ests included  in  that  adventure." 

But,  if  the  scuttling  was  done  at  the  request  of  the  mas- 
ter, the  loss  would  be  the  subject  of  general  average.1'8 

It  Mast  Not  be  Caused  by  Any  Fault 19 

For  instance,  it  is  implied  in  all  contracts  of  shipment 
that  the  vessel  shall  be  seaworthy.20  If  a  voluntary  sacri- 
fice is  rendered  necessary  by  a  breach  of  this  warranty,  the 
vessel  so  far  from  being  entitled  to  recover  in  general  av- 
erage, can  be  held  liable  for  any  injury  to  the  cargo  caused 
thereby.21 

Under  the  Harter  Act,  if  she  has  exercised  due  diligence 
to  make  herself  seaworthy,  she  is  no  longer  liable  to  the 
cargo  for  negligent  navigation,  but  in  the  absence  of  spe- 
cial agreement  she  cannot  claim  contribution  in  general 
average  for  an  injury  so  occasioned.  But  since  the  passage 
of  that  statute  she  can  claim  such  contribution  if  the  right 
to  the  same  is  the  subject  of  special  stipulation.22 

A  shipper,  however,  is  not  considered  in  fault,  and  there- 
by deprived  of  the  right  to  contribution,  when  the  peril 
is  caused  by  a  concealed  defect  in  his  shipment  equally  un- 
known to  him  and  the  shipowner.23 

Cargo  carried  on   deck,   of   a  character   not  customarily 


is  Roanoke,  S  C.  C.  A.  67,  59  Fed.  161. 

ifllrrawaddy,  171  U.  S.  187,  IS  Sup.  Ct.  S31.  43  L.  Ed.  130;  Tara- 
bochia  v.  American  Sugar  Refining  Co.  (D.  C.)  135  Fed.  424. 

20  Caledonia,  157  U.  S.  124,  15  Sup.  Ct.  537,  39  L.  Ed.  644. 

zilrrawaddy,  171  U.  S.  1S7,  IS  Sup.  Ct.  831,  43  L.  Ed.  130; 
Pacific  Mail  S.  S.  Co.  v.  X.  Y.  II.  &  R.  Min.  Co.,  20  C.  C.  A.  349,  74 
Fed.  564 ;    Snow  v.  Perkins  (D.  C.)  39  Fed.  334. 

22  Post,  c.  8,  p.  1S6;  Jason,  225  U.  S.  32,  32  Sup.  Ct.  560,  56  L.  Ed. 
969;    Ralli  v.  Societa  Anonima  de  Xavigazione  (D.  C.)  222  Fed.  994. 

23  Win.  J.  Quillan,  ISO  Fed.  6S1,  103  C.  C.  A.  647;  Greenshields  y. 
Stephens,  [190S]  A.  C.  431. 

HuGnES,ADM.(2D  En.) — 4 


50  GENERAL  AVERAGE   AND  MARINE   INSURANCE       (Ch.  3 

carried  there,  cannot  claim  the  benefit  of  a  general  average 
as  against  those  not  agreeing  thereto.24 

It  Must  be  Successful 

The  foundation  of  the  claim  is  that  it  is  for  the  benefit  of 
all.  If  they  are  not  benefited  thereby,  there  is  no  equita- 
ble claim  upon  them.25 

It  Must  be  Necessary 

This  almost  goes  without  saying.  The  master  is  vested 
with  a  large  discretion  as  to  its  necessity,  and  the  courts  are 
inclined  to  uphold  that  discretion.28 

Practice 

In  practice,  when  a  master  has  had  a  disaster,  he  comes 
into  port  for  the  purpose  of  repairs,  and  employs  an  aver- 
age adjuster  to  make  up  a  statement,  pick  out  such  items 
as  are  properly  chargeable  in  general  average,  and  appor- 
tion them  among  the  several  interests.  The  master  is  en- 
titled to  hold  the  cargo  until  this  is  done,  or  until  its  own- 
ers give  average  bonds  conditioned  to  pay  their  respective 
proportions.  If  he  does  not  do  so,  his  owners  are  liable  to 
the  parties  injured.27 
Remedies  to  Enforce  Contribution 

At  first  there  was  some  question  whether  admiralty  had 
jurisdiction  over  suits  to  compel  the  payment  of  such  pro- 
portion. But  it  is  now  settled  that  the  master  has  a  lien 
upon  the  cargo  to  enforce  their  payment,  that  such  lien  may 
be  asserted  in  an  admiralty  court,  and  that  suits  on  aver- 
age bonds  are  also  sustainable  in  admiralty.28 

2*Hettie  Ellis  (C.  C.)  20  Fed.  507;  John  H.  Cannon  (D.  C.)  51 
Fed.  46;  Wood  v.  Phoenix  Ins.  Co.  (D.  C.)  1  Fed.  235;  Id.  (C.  C.) 
8  Fed.  27. 

2BCongdon  on  General  Average,  11. 

2  6  Lawrence  v.  Minturn,  17  How.  100,  15  L.  Ed.  58.  This  means 
that  there  must  be,  in  the  language  of  Ralli  v.  Troop,  supra,  "an 
imminent  peril  impending  over  the  whole." 

it  Santa  Ana,  154  Fed.  800,  S4  C.  C.  A.  312. 

ssDupont  de   Nemours   v.    Vance,    10  How.   1G2,   15  L.    Ed.   584; 


§§  22-23)  "marine  insurance"  defined  51 


"MARINE   INSURANCE"   DEFINED 

22.  Marine  insurance  is  an  insurance  against  risks  connect- 

ed with  navigation,  to  which  a  ship,  cargo,  freight, 
or  other  insurable  interest  in  such  property  may 
be  exposed  during  a  certain  voyage  or  a  fixed  pe- 
riod of  time. 

23.  MARITIME  CHARACTER  OF  CONTRACTS— Such 

contracts  are  cognizable  in  the  admiralty,  but  are 
not  so  connected  with  the  ship  as  to  give  a  proceed- 
ing against  the  ship  herself  for  unpaid  premiums. 

Marine  insurance  is  of  great  antiquity,  and  is  recognized 
as  within  the  jurisdiction  of  the  admiralty  courts  by  the 
leading  continental  courts  and  authorities.  In  America  it 
was  so  held  by  Mr.  Justice  Story  in  the  great  case  of  DE 
LOVIO  v.  BOIT,29  and  was  definitely  settled  by  the  de- 
cision of  the  Supreme  Court  in  New  England  Mut.  Ins.  Co. 
v.  Dunham.30  But,  while  such  contracts  are  maritime, 
the  distinction  heretofore  drawn  still  prevails,  as  pre- 
liminary contracts  for  insurance,  or  suits  to  reform  a 
policy  not  in  accordance  with  the  preliminary  contract,  are 
not  maritime.31 

San  Fernando  (C.  C.)  12  Fed.  341.  On  this  general  subject.  See, 
also,  1  Pars.  Shipp.  &  Adin.  338-478 ;  Coast  Wrecking  Co.  v.  Phoenix 
Ins.  Co.  (C.  C.)  13  Fed.  127 ;  Ralli  v.  Societa  Anonirna  de  Navigazione 
(D.  C.)  222  Fed.  994. 

§§  22-23.     20  Fed.  Cas.  No.  3,776. 

so  li  Wall.  1,  20  L.  Ed.  90.  In  England  the  admiralty  courts  have 
no  jurisdiction  in  such  cases.     Queen  v.  Judge  (1S92)  1  Q.  B.  273,  293.. 

The  English  act  to  codify  the  law  relating  to  marine  insurance, 
known  as  the  Marine  Insurance  Act,  1906,  so  far  from  restoring  such 
jurisdiction,  provides  that  "the  rules  of  the  common  law,  including 
the  law  merchant,  save  in  so  far  as  they  are  inconsistent  with  the 
express  provisions  of  this  act,  shall  continue  to  apply  to  contracts  of 
marine  insurance." 

3i  Andrews  v.  Essex  Fire  &  Marine  Ins.  Co.,  3  Mason,  6,  Fed.  Cas. 
No.  374 ;    Reliance  Lumber  Co.  v.  Rothschild  (D.  C.)  127  Fed.  745. 


52  GENERAL  AVERAGE   AND   MARINE   INSURANCE       (Ch.  3 

Though  insurance  contracts  are  maritime,  a  claim  for  un- 
paid premiums  can  only  be  asserted  against  the  party  tak- 
ing out  the  insurance,  and  cannot  be  made  the  basis  of  a 
proceeding  in  rem  against  the  vessel  insured.32 

The  reason  of  this  is  that  insurance  is  for  the  benefit  of 
the  owner  alone.  It  does  not  benefit  the  vessel  as  a  vessel. 
It  does  not  render  her  more  competent  to  perform  her  voy- 
age, or  aid  her  to  fulfill  the  purpose  of  her  creation."3 

INSURABLE  INTEREST 

24.  Every  person  has  an  insurable  interest  who  is  inter- 
ested in  a  marine  adventure. 
In  particular,  a  person  is  interested  in  a  marine  adven- 
ture, where  he  stands  in  any  legal  or  equitable  re- 
lation to  the  adventure,  or  to  any  insurable  prop- 
erty at  risk  therein,  in  consequence  of  which  he 
may  benefit  by  the  safety  or  due  arrival  of  insura- 
ble property,  or  may  be  prejudiced  by  its  loss,  or 
by  the  detention  thereof,  or  by  damage  thereto,  or 
may  incur  liability  in  respect  thereof. 

This  definition  is  taken  from  the  English  Marine  Insur- 
ance Act,  1906.  It  does  not  necessarily  mean  that  the  in- 
sured must  have  an  insurable  interest  at  the  time  of  effect- 
ing the  policy.  He  must  have  it,  however,  at  the  time  of 
the  loss.  For  instance,  it  is  frequently  the  case  that  vessels 
whose  whereabouts  are  unknown  may  be  insured  "lost  or 
not  lost,"  and  this  insurance  is  valid  though  at  the  time  it 
is  effected  it  may  turn  out  that  the  vessel  has  been  totally 
lost.    In  HOOPER  v.  ROBINSON,34  the  court  quotes  with 

32  Hope  (D.  C.)  49  Fed.  279;    City  of  Camden,  147  Fed.  S47. 

sspierouia  (D.  C.)  175  Fed.  639. 

§  24.  84  98  TT.  S.  r.L'.x.  25  L.  Ed.  219.  See,  also.  Woodside  v.  Can- 
ton Ins.  Office  (I).  C)  84  Fed.  283;  Canton  Ins.  Office  v.  Woodside 
90  Fed.  301.  33  C.  C.  A.  63. 


§  24)  INSURABLE    INTEREST  53 

approval  a  paragraph  from  A  mould's  Insurance,  which 
says  that  the  insurable  interest  subsisting  during  the  risk 
and  at  the  time  of  loss  is  sufficient,  and  the  assured  need 
not  allege  or  prove  that  he  was  interested  at  the  time  of 
effecting  the  policy.  The  court  also  says  that  where  the 
insurance  is  "lost  or  not  lost"  the  thing  insured  may  be 
irrecoverably  lost  when  the  contract  is  entered  into,  and  yet 
the  contract  is  valid,  for  it  is  a  stipulation  for  indemnity 
against  past  as  well  as  future  losses,  and  the  law  upholds 
it.  In  the  same  case  the  court  says :  "A  right  of  property 
in  a  thing  is  not  always  indispensable  to  the  insurable  in- 
terest. Injury  from  its  loss  or  benefit  from  its  preserva- 
tion to  accrue  to  the  assured  may  be  sufficient,  and  a  con- 
tingent interest  thus  arising"  may  be  made  the  subject  of  a 
policy." 

In  Buck  v.  Chesapeake  Ins.  Co.35  the  Supreme  Court 
says  that  interest  does  not  mean  property. 

A  contract  of  marine  insurance,  like  other  contracts  of 
property  insurance,  is  a  contract  of  indemnity,  and  hence 
the  party  taking  out  the  insurance  can  only  claim  indemni- 
ty for  his  actual  loss,  and  cannot  make  a  wager  policy.  An 
absolute  title  or  property  is  not  necessary  for  the  validity 
of  such  insurance.  For  instance,  in  China  Mut.  Ins.  Co. 
v.  "Ward,30  it  was  held  that  advances  by  a  ship's  husband, 
accompanied  by  no  lien,  but  constituting  a  mere  personal 
debt  of  the  shipowner,  were  not  such  an  interest  as  gave 
him  an  insurable  interest.  On  the  other  hand,  in  the  Gul- 
nare,37  an  agent  who  was  operating  a  vessel  on  commission, 
with  an  actual  pledge  of  the  vessel  as  security,  was  held  to 
have  an  insurable  interest. 

In  Merchants'  Mut.  Ins.  Co.  v.  Baring,33  it  was  held  that 

35  1  Pet.  151,  7  L.  Ed.  90. 

ss  S  C.  C.  A.  229,  59  Fed.  712.  See,  also,  Seagrave  v.  Insurance  Co., 
Iy.  R.  1  C.  P.  305. 

3T  (C.  C.)  42  Fed.  S61. 

3S20  Wall.  159,  22  L.  Ed.  250.     See,  also,  Fern  Holme  (D.  C.)  46 


54  GENERAL   AVERAGE   AND   MARINE   INSURANCE        (Ch.  3 

advances  of  money  for  the  benefit  of  the  ship  which  had 
attached  to  them  a  lien,  marine  or  equitable,  upon  the  ship 
for  their  repayment  gave  an  insurable  interest. 

A  carrier  has  an  insurable  interest  in  goods  under  its 
control.39 

Double  Insurance 

As  it  is  possible  thus  to  insure  not  simply  the  entire  prop- 
erty, but  different  interests  in  the  property,  different  par- 
ties may  insure  different  interests  in  the  same  property 
without  its  constituting  double  insurance. 

In  International  Nav.  Co.  v.  Insurance  Co.  of  North 
America,40  it  was  held  that  a  policy  on  disbursements, 
which  covered  many  subjects  connected  with  the  use  of  the 
ship  as  well  as  any  interest  in  the  ship  not  covered  by  in- 
surance (which  was  against  total  loss  only),  was  not  double 
insurance  with  the  policy  on  the  ship  herself  covering  par- 
tial as  well  as  total  loss.  The  subject-matter  of  the  insur- 
ance was  different. 

In  St.  Paul  Fire  &  Marine  Ins.  Co.  v.  Knickerbocker 
Steam  Towage  Co.,41  a  marine  policy  permitting  the  tug  to 
navigate  certain  waters  provided  that,  while  she  was  out 
of  these  waters,  the  policy  should  be  suspended,  and  should 
reattach  when  she  returned  to  such  waters.  The  vessel, 
intending  to  go  out  of  these  waters,  thereupon  procured  in- 
surance during  such  deviation.  The  court  held  that  this 
was  not  double  insurance,  as  the  two  policies  necessarily 
did  not  overlap. 

The  issue  of  the  policy  raises  a  presumption  that  the 
party  insured  has  an  insurable  interest.42 

Fed.  119;  Providence  Washington  Ins.  Co.  v\  Bowring,  50  Fed.  613, 
1  C.  C.  A.  583. 

so  Ursula  Brighl  S.  S.  Co.,  Ltd.,  v.  Amsinck  (D.  C.)  115  Fed.  242; 
Munich  Assur.  Co.  v.  Dodwell,  128  Fed.  410,  63  C.  C.  A.  152. 

40  (D.  C.)  100  Fed.  30-1 ;    Id.,  108  Fed.  987,  48  C.  C.  A.  181. 

4)  93  Fed.  931,  36  C.  C.  A.  19. 

42  Nantes  v.  Thompson,  2  East,  386. 


§§  25-26)       CONDITIONS  IN   CONTRACTS  OF  INSURANCE  55 

CONDITIONS  IN  CONTRACTS  OF  INSURANCE 

25.  CONTRACTS     OF    MARINE    INSURANCE    ARE 

SUBJECT  TO  CERTAIN  CONDITIONS,  ex- 
press or  implied,  a  breach  of  which  avoids  the 
contract. 

26.  MISREPRESENTATION  AND  CONCEALMENT— 

Any  misrepresentation  or  concealment  of  a  ma- 
terial fact,  or  any  breach  of  warranty  of  any  fact, 
will  avoid  the  policy. 

The  law  on  the  subject  of  representations  in  insurance 
policies  may  be  said  to  be  generally  the  same  as  in  any  oth- 
er contract.  Any  representation  of  a  material  fact,  or  a 
fact  which  would  influence  the  judgment  of  a  prudent  un- 
derwriter, as  to  taking  the  risk  or  assessing  the  premium, 
must  be  substantially  true,  and  every  fact  of  this  sort  which 
is  within  the  knowledge  of  the  assured,  and  not  in  the 
knowledge  of  the  underwriter,  must  be  stated.  The  courts, 
perhaps,  have  been  a  little  stricter  in  reference  to  marine  in- 
surance policies  than  other  contracts,  on  account  of  the  pe- 
culiar nature  of  the  business. 

In  Hazard  v.  New  England  M.  Ins.  Co.,43  the  vessel  was 
represented  as  a  coppered  ship.  She  was  then  in  the  port 
of  New  York,  and  the  party  applying  for  the  insurance 
wrote  from  there  to  Boston  to  get  it.  The  expression  had 
different  meanings  in  New  York  and  Boston.  The  court 
held  that  the  New  York  meaning  was  to  be  taken.  If  the 
representation  had  not  come  up  to  that  meaning,  the  policy 
would  have  been  void. 

In  the  same  case  it  was  held  that  an  underwriter  is  pre- 
sumed to  know  the  usages  of  foreign  ports  to  which  insured 
vessels  are  destined ;  also  the  usages  of  trade,  and  the 
political  conditions  of  foreign  nations ;   and  that,  therefore, 

§§  25-26.     4  3  s  Pet.  557,  8  L.  Ed.  1043. 


56  GENERAL   AVERAGE    AND    3IARINE    INSURANCE        (Ch.  3 

such  matters  of  common  knowledge  as  this  need  not  be  ex- 
pressly stated. 

In  Buck  v.  Chesapeake  Ins.  Co.,44  which  was  a  policy 
"for  whom  it  might  concern,"  the  court  held  that  it  was  not 
incumbent  upon  the  party  taking  out  the  insurance  to  state 
who  were  interested  in  it,  unless  the  question  was  asked, 
but  the  questions  asked  must  be  answered  truthfully. 

SUN  MUT.  INS.  CO.  v.  OCEAN  INS.  CO.45  was  a  case 
where  a  company  which  had  insured  a  vessel  on  certain 
voyages  reinsured  the  risk  in  another  company.  They 
failed  to  state,  in  the  information  which  they  gave  the  sec- 
ond company,  the  existence  of  an  important  charter,  of 
which  they  knew,  and  of  which  the  second  company  did  not 
know.  The  policy  was  held  void.  The  court  said :  "It 
thus  appears  that  at  the  time  of  the  loss  Melcher  had  insur- 
ance on  two  concurrent  charters  and  his  primage  thereon 
during  one  voyage,  being  insured,  besides  his  interest  in 
the  ship,  on  double  the  amount  of  its  possible  earnings  of 
freight  for  one  voyage.  This  fact  was  known  to  the  Ocean 
Company  at  the  time,  and  was  not  communicated  by  it  to 
the  Sun  Company,  which  was  without  other  knowledge 
upon  the  subject,  and  executed  its  policy  to  the  Ocean  Com- 
pany in  ignorance  of  it. 

"That  knowledge  of  the  circumstance  was  material  and 
important  to  the  underwriter,  as  likely  to  influence  his 
judgment  in  accepting  the  risk,  we  think  is  so  manifest  to 
common  reason  as  to  need  no  proof  of  usage  or  opinion 
among  those  engaged  in  the  business.  It  was  a  flagrant 
case  of  overinsurance  upon  its  face,  and  made  it  the  pe- 
cuniar}- interest  of  the  master  in  charge  of  the  ship  to  fore- 
go and  neglect  the  duty  which  he  owed  to  all  interested  in 
her  safety.  Had  it  been  known,  it  is  reasonable  to  believe 
that  a  prudent  underwriter  would  not  have  accepted  the 
proposal  as  made,  and,  where  the  fact  of  the  contract  is  in 

**  1  Pet  151,  7  L.  Ed.  90. 

*s  107  D.  S.  485,  1  Sup.  Ct.  582,  27  L.  Ed.  337. 


§§  25-26)         CONDITIONS   IN   CONTRACTS   OF   INSURANCE  57 

dispute,  as  here,  it  corroborates  the  denial  of  the  appel- 
lants. The  concealment,  whether  intentional  or  inadvert- 
ent, we  have  no  hesitation  in  saying,  avoids  the  policy,  if 
actually  intended  to  cover  the  risk  for  which  the  claim  is 
made. 

"In  respect  to  the  duty  of  disclosing  all  material  facts, 
the  case  of  reinsurance  does  not  differ  from  that  of  an  orig- 
inal insurance.  The  obligation  in  both  cases  is  one  uber- 
rimas  fidei.  The  duty  of  communication,  indeed,  is  inde- 
pendent of  the  intention  and  is  violated  by  .the  fact  of  con- 
cealment, even  where  there  is  no  design  to  deceive.  The 
exaction  of  information  in  some  instances  may  be  greater 
in  a  case  of  reinsurance  than  as  between  the  parties  to  an 
original  insurance.  In  the  former,  the  party  seeking  to 
shift  the  risk  he  has  taken  is  bound  to  communicate  his 
knowledge  of  the  character  of  the  original  insured,  where 
such  information  would  be  likely  to  influence  the  judgment 
of  an  underwriter;  while  in  the  latter  the  party,  in  the  lan- 
guage of  Bronson,  J.,  in  the  case  of  New  York  Bowery 
Fire  Ins.  Co.  v.  Insurance  Co.,  17  Wend.  (N.  Y.)  359,  367, 
is  'not  bound,  nor  could  it  be  expected  that  he  should  speak 
evil  of  himself.' 

"Mr.  Duer  (2  Ins.  398,  Lect.  13,  pt.  1,  §  13)  states  as  a 
part  of  the  rule  the  following  proposition : 

"  'Sec.  13.  The  assured  will  not  be  allowed  to  protect  him- 
self against  the  charge  of  an  undue  concealment  by  evi- 
dence that  he  had  disclosed  to  the  underwriters,  in  general 
terms,  the  information  that  he  possessed.  Where  his  own 
information  is  specific,  it  must  be  communicated  in  the 
terms  in  which  it  was  received.  General  terms  may  in- 
clude the  truth,  but  may  fail  to  convey  it  with  its  proper 
force,  and  in  all  its  extent.  Nor  will  the  assured  be  per- 
mitted to  urge,  as  an  excuse  for  his  omission  to  communi- 
cate material  facts,  that  they  were  actually  known  to  the 
underwriters,  unless  it  appears  that  their  knowledge  was 
as  particular  and  full  as  his  own  information.     It  is  the 


58  GENEKAL  AVERAGE   AND  MARINE   INSURANCE        (Ch.  3 

duty  of  the  assured  to  place  the  underwriter  in  the  same 
situation  as  himself;  to  give  to  him  the  same  means  and 
opportunity  of  judging  of  the  value  of  the  risks ;  and,  when 
any  circumstance  is  withheld,  however  slight  and  imma- 
terial it  mav  have  seemed  to  himself,  that,  if  disclosed, 
would  probably  have  influenced  the  terms  of  the  insurance, 
the  concealment  vitiates  the  policy.'  "  4G 

If  the  insurance  is  placed  through  a  distant  agent  igno- 
rant of  a  material  fact  which  is  known  to  the  principal,  it 
is  the  duty  of  the  latter  to  communicate  it  to  the  agent  if 
possible;   and  his  failure  to  do  so  would  avoid  the  policy.47 

In  England  it  is  the  practice  to  have  a  preliminary  bind- 
er before  the  issuing  of  the  main  policy,  and  the  initialing 
of  this  by  the  parties  is  treated  by  them  as  morally  bind- 
ing, although  unenforceable  as  a  contract  for  want  of  a 
stamp. 

In  Cory  v.  Patton,48  after  this  preliminary  contract  was 
made,  but  before  the  policy  was  issued,  certain  material 
facts  came  to  the  knowledge  of  the  agent  of  the  insured; 
the  fact  so  coming  to  his  knowledge  being  the  very  ma- 
terial one  that  the  ship  had  been  lost.  The  court  held, 
however,  that  it  was  not  incumbent  upon  the  insured  to 
communicate  this  fact,  though  the  preliminary  contract 
was  not  binding,  and  the  policy  had  not  been 'issued,  be- 
cause he  had  given  all  the  material  facts  up  to  the  time  of 
the  preliminary  contract,  and  they  would  not  tempt  the  un- 


46  See,  also,  Northwestern  S.  S.  Co.  v.  Maritime  Ins.  Co.  (C.  C.) 
161  Fed.  166.  Granger  v.  Providence  Washington  Ins.  Co.,  200  Fed. 
730,  119  C.  C.  A.  174.  The  English  Marine  Insurance  Act,  190G,  is 
an  accurate  summary  of  the  law  as  to  disclosure  and  representations. 
See  sections  17-20.  See  Gow,  Mar.  Ins.  p.  392,  and  Winter,  Mar. 
Ins.  p.  3S7,  for  the  full  text  of  this  act. 

47  McLanahan  v.  Universal  Ins.  Co.,  1  Pet.  171,  7  L.  Ed.  98;  Kerr 
v.  Union   Marine   Ins.  Co.,  130  Fed.  415,  64  C,  C.  A.  617. 

48  L  R.  9  Q.  B.  577.  Merchants'  Mat.  Ins.  Co.  v.  Lyman,  15  Wall. 
664,  21  L.  Ed.  246,  can  hardly  be  considered  in  conflict  with  this. 


§  27  CONDITIONS   IN   CONTRACTS   OF   INSURANCE  59 

derwriter  to  repudiate  an  obligation  treated  as  a  moral 
one  by  those  in  the  business. 

A  leading  case  on  this  general  subject  is  IONIDES  v. 
PENDER.40  There  the  assured  greatly  overvalued  the 
goods  without  disclosing  the  real  valuation  to  the  under- 
writer, and  it  was  shown  that  the  question  of  valuation 
is,  among  underwriters,  a  very  material  consideration.  The 
court  held  that  this  misrepresentation  vitiated  the  policy. 

The  general  doctrine  that  a  warranty,  even  of  an  imma- 
terial matter,  if  broken,  avoids  the  policy,  is  well  settled.60 

SAME— SEAWORTHINESS 

27.  It  is  an  implied  condition  of  marine  insurance  on  ves- 
sel, cargo,  or  freight  that  the  vessel  shall  be  sea- 
worthy, which  means  that  she  must  be  sufficient- 
ly tight,  stanch,  and  strong  to  resist  the  ordinary 
attacks  of  wind  and  sea  during  the  voyage  for 
which  she  is  insured,  and  that  she  must  be  prop- 
erly manned  and  equipped  for  the  voyage. 

The  Marine  Insurance  Act,  1906,  expresses  this  pithily 
as  follows : 

"A  ship  is  deemed  to  be  seaworthy  when  she  is  reasona- 
bly fit  in  all  respects  to  encounter  the  ordinary  perils  of  the 
seas  of  the  adventure  insured."  51 

Seaworthiness  is,  necessarily,  a  variable  term.  A  vessel 
which  is  seaworthy  for  river  navigation  may  not  be  for 
bay  navigation,  and  a  vessel  which  is  seaworthy  for  bay 
navigation  may  not  be  for  ocean  navigation.  Hence  the 
seaworthiness  implied  means  seaworthiness  for  the  voyage 
insured.    It  applies  not  only  to  the  hull  of  the  vessel,  but  to 

*9  L.  R.  9  Q.  b.  531. 

so  l  Pars.  Ins.  337;    Snyder  v.  Home  Ins.  Co.  (D.  C.)  133  Fed.  848; 
Id.,  148  Fed.  1021,  79  C.  C.  A.  536. 
§  27.     si  Section  39,  cl.  (4). 


60  GENEEAL   AVEEAGE    AND   MARINE    INSURANCE        (Ch.  3 

her  outfit,  including  her  crew.  She  must  be  properly  fitted 
out  for  the  voyage  which  she  is  to  undertake,  and  she  must 
have  a  sufficient  and  competent  crew. 

In  Pope  v.  Swiss  Lloyd  Ins.  Co.,52  it  was  held  that  a 
vessel  with  insufficient  ground  tackle  to  hold  her  against  or- 
dinary incidents  of  navigation,  including  ordinarily  heavy 
weather,  was  not  seaworthy. 

In  RICHELIEU  &  O.  NAV.  CO.  v.  BOSTON  MA- 
RINE IXS.  CO./'3  it  was  held  that  a  vessel  whose  compass 
was  defective,  though  not  known  to  be  so,  was  unseawor- 
thy ;  for  it  is  implied  not  merely  that  the  vessel  owner 
will  use  ordinary  care  to  keep  his  vessel  seaworthy,  but 
that  she  actually  is  seaworthy. 

In  the  case  of  steamers,  seaworthiness  implies  sufficient 
fuel  for  the  voyage.54 

In  the  Niagara55  (which  was  a  suit  by  a  shipper,  not  an 
insurance  case,  but  which  applies  on  this  point)  the  court 
-ays:  "A  carrier's  first  duty,  and  one  that  is  implied  by 
law,  when  he  is  engaged  in  transporting  goods  by  water,  is 
to  provide  a  seaworthy  vessel,  tight  and  stanch,  and  well 
furnished  with  suitable  tackle,  sails,  or  motive  power,  as 
the  case  may  be,  and  furniture  necessary  for  the  voyage. 
She  must  also  be  provided  with  a  crew,  adequate  in  num- 
ber, and  sufficient  and  competent  for  the  voyage,  with  refer- 

52  iD.  C.)  4  Fed.  153. 

"  13G  U.  S.  408,  10  Sup.  Ct.  934,  34  L.  Ed.  39S. 

B4McIver  v.  Tate  Steamers,  Ltd.,  [1903]  1  K.  B.  3G2;  Greenock 
S.  S.  Co.  v.  .Maritime  Ins.  Co.,  [1903]  1  K.  B.  3G7 ;  [1903J  2  K.  B.  657. 
But  fodder  for  a  cargo  of  cuttle  is  not  an  appurtenance  of  the  ves- 
sel, so  as  to  render  her  unseaworthy,  if  not  fit  for  the  cattle.  Of 
course  such  unfitness  may  be  a  violation  of  some  special  agreement. 
Tweedie  Trading  Co.  v.  Western  Assur.  Co.,  179  Fed.  103,  102  C.  < '. 
A.  397. 

21    How.  7,  16  L.   Ed.  41.     See.  als...    Whealton   Tacking  Co.   v. 
.Etna    Ins.   C.,..    L85    Fed.   1<>s.   107  C.  C.  A.   113.  34  L.   R.  A.   (N.   S.i 
563;    Forshaw  v.  Chabut,  ::  Br.  &  B.  158  (7  E.  C.  L.);    Clifford  \ 
Hunter,  3  <  \  A:  P.    It;  H  1    G.  C.    L.). 


§  27)  CONDITIONS   IN   CONTRACTS   OF  INSURANCE  CI 

ence  to  its  length  and  other  particulars,  and  with  a  compe- 
tent and  skillful  master,  of  sound  judgment  and  discretion; 
and,  in  general,  especially  in  steamships  and  vessels  of  the 
larger  size,  with  some  person  of  sufficient  ability  and  ex- 
perience to  supply  his  place,  temporarily,  at  least,  in  case 
of  his  sickness  or  physical  disqualification.  Owners  must 
see  to  it  that  the  master  is  qualified  for  his  situation,  as  they 
are,  in  general,  in  respect  to  goods  transported  for  hire,  re- 
sponsible for  his  acts  and  negligence." 

In  STEEL  v.  STATE  LINE  S.  S.  CO.,56  Lord  Cairns 
defines  seaworthiness  as  follows : 

"I  think  there  cannot  be  any  reasonable  doubt  enter- 
tained that  this  is  a  contract  which  not  merely  engages  the 
shipowner  to  deliver  the  goods  in  the  condition  mentioned, 
but  that  it  also  contains  in  it  a  representation  and  an  en- 
gagement— a  contract — by  the  shipowner  that  the  ship  on 
which  the  wheat  is  placed  is,  at  the  time  of  its  departure, 
reasonably  fit  for  accomplishing  the  service  which  the  ship- 
owner engages  to  perform.  Reasonably  fit  to  accomplish 
that  service  the  ship  cannot  be  unless  it  is  seaworthy.  By 
'seaworthy,'  my  lords,  I  do  not  desire  to  point  to  any  tech- 
nical meaning  of  the  term,  but  to  express  that  the  ship 
should  be  in  a  condition  to  encounter  whatever  perils  of  the 
sea  a  ship  of  that  kind,  and  laden  in  that  way,  may  be  fair- 
ly expected  to  encounter  in  crossing  the  Atlantic.     *     *     * 

"But,  my  lords,  if  that  is  so,  it  must  be  from  this,  and 
only  from  this,  that  in  a  contract  of  this  kind  there  is  im- 
plied an  engagement  that  the  ship  shall  be  reasonably  fit 
for  performing  the  service  which  she  undertakes.  In  prin- 
ciple, I  think  there  can  be  no  doubt  that  this  would  be  the 
meaning  of  the  contract ;  but  it  appears  to  me  that  the 
question  is  really  concluded  by  authority.  It  is  sufficient 
to   refer  to   the  case  of  Lyon  v.   Mells,5,7   in   the  court  of 

66  3  A.  C.  72,  76,  77.  See,  also,  Bullard  v.  Roger  Williams  Ins. 
Co.,  1  Curt.  148,  Fed.  Cas.  No.  2,122. 

67  5  East,  42S. 


62  GENERAL  AVERAGE   AND  MARINE   INSURANCE       (Ch.  3 

queen's  bench  during  the  time  of  Lord  Ellenborough,  and 
to  the  very  strong  and  extremely  well  considered  expres- 
sion of  the  law  which  fell  from  the  late  Lord  Wensleydale 
when  he  was  a  judge  of  the  court  of  exchequer,  and  was 
advising  your  lordship's  house  in  the  case  of  Gibson  v. 
Small."  5S 

As  a  general  rule,  the  burden  of  proving  unseaworthiness 
is  on  the  underwriter.59 

But  where  a  vessel  which  has  been  exposed  to  no  unusual 
peril  suddenly  develops  a  leak  within  a  short  time,  this  may 
raise  a  presumption  of  unseaworthiness.60  In  reference  to 
this  Judge  Curtis  says : 

"But,  as  I  have  already  indicated,  the  presumption  is 
that  this  brig  was  seaworthy,  and  the  burden  of  proof  is 
on  the  underwriters  by  some  sufficient  evidence  to  remove 
this  presumption.  This  may  be  done  either  by  proving  the 
existence  of  defects  amounting  to  unseaworthiness  before 
she  sailed,  or  that  she  broke  down  during  the  voyage,  not 
having  encountered  any  extraordinary  action  of  the  winds 
or  waves,  or  any  other  peril  of  the  sea  sufficient  to  produce 
such  effect  upon  a  seaworthy  vessel,  or  by  showing  that  an 
examination  during  the  voyage  disclosed  such  a  state  of 
decay  and  weakness  as  amounted  to  unseaworthiness,  for 
which  the  lapse  of  time  and  the  occurrences  of  the  voyage 
would  not  account.     *     *     * 

"There  is  such  a  standard,  necessarily  expressed  in  gen- 
eral terms,  but  capable  of  being  applied,  by  an  intelligent 
jury,  to  the  proofs  in  the  cause.     The  hull  of  the  vessel 

58  4  II.  L.  Cas.  353. 

59  Nome  Bench  Lighterage  &  Transp.  Co.  v.  Munich  Assur.  Co.  (C. 
C.)  123  Fed.  S20;  Fireman's  Fund  Ins.  Co.  v.  Globe  Nav.  Co.,  236 
Fed.  618,  149  C.  C.  A.  614  ;    Pickup  v.  Insurance  Co.,  3  Q.  B.  D.  594. 

ooBullard  v.  Roger  Williams  Ids.  Co.,  1  Curt  148,  Fed.  Cas.  No. 
2,122.  See,  also,  Moores  v.  Underwriters  (C.  C.)  14  Fed.  226; 
Batchelder  v.  Insurance  Co.%of  North  America  (D.  C.)  30  Fed.  459; 
Work  v.  Leathers,  07  U.  S.  379,  24  L.  Ed.  1012;  Ajum  v.  Insurance 
Co.,  [10011  A.  C.  3G2. 


§  27)  CONDITIONS   IN   CONTRACTS   OF  INSURANCE  63 

must  be  so  tight,  stanch,  and  strong-  as  to  be  competent 
to  resist  the  ordinary  attacks  of  wind  and  sea  during  the 
voyage  for  which  she  is  insured." 

This  warranty  of  seaworthiness  applies  at  the  commence- 
ment of  the  voyage.  A  vessel  may  be  in  port,  and  require 
extensive  repairs,  but,  if  these  repairs  are  made  before  she 
sails,  so  as  to  make  her  seaworthy  at  sailing,  she  fulfills 
what  is  required  of  her.61' 

This  condition  always  applies  to  insurance  under  voyage 
policies.  As  to  time  policies,  there  is  quite  a  difference  be- 
tween English  and  American  decisions.  Under  the  Ameri- 
can decisions  a  vessel,  when  insured  by  a  time  policy,  must 
be  seaworthy  at  the  commencement  of  the  risk.  If,  when 
so  seaworthy,  she  sustains  damage,  and  is  not  refitted  at  an 
intermediate  port,  and  a  prudent  master  would  have  refitted 
her  there,  and  she  is  lost  in  consequence  of  the  failure  to 
refit  her,  she  would  be  unseaworthy,  and  the  underwriter 
would  not  be  liable.  If,  however,  she  is  not  refitted,  and  is 
lost  from  a  different  cause,  the  underwriters  would  be  lia- 
ble, though  a  prudent  master  would  have  had  her  refitted.62 

In  England,  on  the  other  hand,  there  is  no  warranty  of 
seaworthiness  on  time  policies,  either  at  the  commencement 
of  the  voyage  or  at  any  other  time.63 

ei'McLanahan  v.  Universal  Ins.  Co.,  1  Pet.  171,  184,  7  L.  Ed.  9S ; 
St.  Paul  Fire  &  Marine  Ins.  Co.  v.  Pacific  Cold  Storage  Co.,  157  Fed. 
625,  87  C.  C.  A.  14,  14  L.  R.  A.  (N.  S.)  1161 ;  Stetson  v.  Insurance  Co. 
of  North  America  (D.  C.)  215  Fed.  186.  But  such  a  warranty  does 
not  apply  to  lighters  employed  to  land  the  cargo.  Pacific  Creosot- 
ing  Co.  v.  Thames  &  Mersey  Marine  Ins.  Co.,  Ltd.  (D.  C.)  210  Fed. 
958;  Thames  &  Mersey  Marine  Ins.  Co.  v.  Pacific  Creosoting  Co., 
223  Fed.  561,  139  C.  C.  A.  101. 

es  Union  Ins.  Co.  v.  Smith,  124  U.  S.  405,  8  Sup.  Ct.  534,  31  L. 
Ed.  497;  Cleveland  &  B.  Transit  Co.  v.  Insurance  Co.  of  North 
America  (D.  C.)  115  Fed.  431  (discussing  the  Inchmaree  clause,  which 
is  intended  to  cover  latent  defects  in  machinery  or  hull  not  due  to 
want  of  due  diligence  by  owners) ;  Luckenbach  v.  W.  J.  McCahan 
Sugar  Refining  Co.,  24S  U.  S.  139,  39  Sup.  Ct.  53,  63  L.  Ed.  170,  1 
A.  L.  R.  1522. 

es  Dudgeon   v.  Pembroke,  2  A.   C.  284.     Section  36,  el.   5,   of  the 


64  GENERAL   AVERAGE    AND   MARINE    INSURANCE        (Ch.  3 

This  condition  only  applies  to  the  vessel.  There  is  no 
implied  condition  that  the  cargo  shall  be  fitted  to  with- 
stand the  voyage  for  which  it  is  insured.04 

SAME— DEVIATION 

28.  It  is  an  implied  condition  of  a  voyage  policy  that  the 
vessel  will  take  the  course  of  sailing  fixed  by  com- 
mercial custom  between  two  ports,  or,  if  none  is 
fixed,  that  it  will  take  the  course  which  a  master 
of  ordinary  skill  would  adopt.  Any  departure 
from  such  course,  or  any  unreasonable  delay  in 
pursuing  the  voyage,  constitutes  what  is  known 
as  a  "deviation." 

The  reason  is  that  such  an  act  on  the  part  of  the  vessel 
substitutes  a  new  risk  different  from  the  one  which  the  un- 
derwriters have  assumed,  and.  after  such  deviation  com- 
mences, the  insurers  are  not  liable  for  any  loss  incurred  dur- 
ing the  deviation.  The  cases  on  this  subject  are  numerous. 
Whether  an  act  is  a  deviation  depends  largely  upon  the 
particular  language  of  the  policy  and  the  course  of  trade. 

In  HEARNE  v.  NEW  ENGLAND  MUT.  MARINE 
INS.  CO.,65  a  vessel  was  insured  to  a  port  in  Cuba,  and  at 
and  thence  to  a  port  of  advice  and  discharge  in  Europe. 
The  vessel  went  to  the  port  in  Cuba,  and  discharged,  and 
then,  instead  of  sailing  direct  to  Europe,  sailed  for  another 
port  in  Cuba  to  reload,  and  was  lost  on  her  way  there.  The 
court  held  that  this  constituted  a  deviation,  and  released 

Marine  Insurance  Act  1906,  provides:  "In  a  time  policy  there  is 
no  implied  warranty  that  the  ship  shall  be  seaworthy  at  any  stage 
Of  the  adventure,  but  where,  with  the  privity  of  the  assured,  the  ship 
is  sent  to  sea  in  an  unseaworthy  state,  the  insurer  is  not  liable  for 
any  loss  attributable  to  unseaworthiness." 

a*Koebe]  v.  Saunders,  17  C.  B.  N.  S.  (112  E.  C.  L.)  71;  141  Re- 
print, 29. 

§  28.     ™20  Wall.  488,  22  L.  Ed.  395. 


§  28)  CONDITIONS   IN   CONTRACTS   OF  INSURANCE  65 

the  underwriters,  and  that,  in  the  face  of  the  express  lan- 
guage of  the  contract,  it  was  not  admissible  to  prove  a  us- 
age in  such  voyages  to  go  to  two  ports  in  Cuba,  one  for  dis- 
charge and  another  for  reloading. 

In  Columbian  Ins.  Co.  v.  Catlett,06  which  was  the  case  of 
a  voyage  policy  from  Alexandria  to  the  West  Indies  and 
back,  it  was  held  that,  as  the  known  usage  of  the  trade  al- 
lowed delay  to  accomplish  the  object  of  the  voyage  by  sell- 
ing out  the  cargo,  it  was  not  a  deviation  to  remain  for  that 
purpose,  provided  the  time  so  occupied  was  not  unreason- 
able. 

In  Wood  v.  Pleasants,67  it  was  held  that  a  stoppage  on 
the  way  for  the  purpose  of  taking  on  water,  and  only  for 
that  purpose,  was  not  a  deviation,  assuming  that  the  ves- 
sel had  a  proper  supply  at  the  time  of  sailing. 

In  West  v.  Columbian  Ins.  Co.,68  a  vessel  insured  on  a 
voyage  to  Pernambuco  unnecessarily  anchored  off  port, 
when  she  might  have  gone  directly  in.  It  was  held  that 
this  delay  was  such  a  deviation  as  discharged  the  under- 
writers. 

Under  the  decisions,  it  is  not  a  deviation  for  a  vessel  to 
delay,  or  go  out  of  her  way,  in  order  to  save  life  at  sea, 
but  would  be  for  the  purpose  of  saving  property.  Under 
the  special  facts  of  special  cases  this  principle  is  sometimes 
difficult  to  apply ;  for  a  vessel  in  deviating  to  save  life  can 
sometimes  best  accomplish  it  by  saving  property,  as,  for 
instance,  by  taking  a  disabled  vessel  in  tow.  But  when, 
after  doing  so,  the  facts  are  such  that  the  lives  can  be  saved 
without  the  property,  a  continued  attempt  to  save  the  prop- 
erty is  a  deviation. 

6  6 12  Wheat.  383,  6  L.  Ed.  664. 
6  7  Fed.  Cas.  No.  17,961,  3  Wash.  C.  C.  201. 

es  Fed.  Cas.  No.  17,421,  5  Cranch,  C.  C.  309.     See,  also,  Martin  v. 
Delaware  Ins.  Co.,  Fed.  Cas.  No.  9,161,  2  Wash.  C.  C.  254. 
Hughes.Adm.  (2d  Ed.) — 5 


66  GENERAL   AYEEAGE   AND  MARINE   INSURANCE       (Ch.  3 

A  leading  case  is  SCARAMANGA  v.  STAMP.69  It  was 
a  case  arising  out  of  a  charter  party  (in  which  there  is  also 
an  implied  warranty  not  to  deviate),  where  a  disabled  ves- 
sel was  taken  in  tow,  causing  considerable  delay  to  the  oth- 
er vessel.  The  court  held,  under  the  facts,  that  the  delay 
was  unjustifiable. 

On  the  other  hand,  in  Crocker  v.  Jackson,70  Judge 
Sprague  held  that  a  departure  of  the  vessel  from  her  course 
in  order  to  ascertain  whether  those  on  board  a  vessel  in 
apparent  distress  needed  relief,  and  the  delay  in  order  to 
offer  such  relief,  was  not  a  deviation,  though  such  action 
for  the  mere  purpose  of  saving  property  would  be.  He 
held,  also,  that,  if  both  motives  existed,  it  would  not  be  a 
deviation,  and  that,  if  the  circumstances  were  not  decisive, 
or  were  ambiguous,  as  to  the  motives  of  the  master  of  the 
salving  vessel,  the  court  would  give  him  the  benefit  of  the 
doubt. 

Distinction  between  Deviation  and  Change  of  Voyage 

It  is  important  to  bear  in  mind  the  distinction  between  a 
deviation  and  an  entire  change  of  voyage.  As  to  the  former, 
a  mere  intention  formed  to  deviate  does  not  avoid  the  policy 
until  that  point  is  reached  where  the  act  of  deviating  com- 
mences. Up  to  that  point  the  policy  is  still  in  force.  On 
the  other  hand,  a  change  of  voyage  avoids  the  policy  ab 
initio,  because  that  substitutes  a  different  risk  from  the 
one  on  which  the  underwriter  has  made  his  calculations. 

The  test  as  between  the  two  is  that,  as  long  as  the  ter- 
mini remain  the  same,  and  the  master,  on  leaving,  intends 
to  go  to  the  terminus  named,  and  then  goes  out  of  his  way, 
or  is  guilty  of  an  unreasonable  delay,  it  is  a  deviation;  but, 
if  the  terminus  is  changed,  then  it  is  a  change  of  voyage. 
This  is  illustrated  by  Marine  Ins.  Co.  of  Alexandria  v, 

co  4  ('.  i>.  D.  316;    Id..  5  C.  P.  D.  295. 
7(»  i  Spr.  in.  Fed.  Cas.  No.  ::.::9s. 


§  29)  CONDITIONS   IN   CONTRACTS   OF   INSURANCE  67 

Tucker.71  There,  a  vessel  was  insured  at  and  from  King- 
ston, Jamaica,  to  Alexandria.  The  captain,  at  Kingston, 
took  on  a  cargo  for  Baltimore,  intending  to  go  to  Balti- 
more, and  then  to  Alexandria.  His  ship  was  captured  be- 
fore reaching  the  Capes.  The  court  held  that  this  was 
merely  an  intended  deviation,  as  the  actual  deviation  would 
not  have  commenced  until  he  had  gone  inside  of  the  Capes 
to  the  parting  of  the  ways  for  the  two  ports,  and  that,  as 
no  man  could  be  punished  for  a  mere  intention,  the  under- 
writers were  liable.  In  such  case,  had  he  intended  to  go  to 
Baltimore  alone,  and  not  to  Alexandria  (the  terminus  nam- 
ed in  the  policy)  at  all,  it  would  have  been  a  change  of 
voyage,  and  his  policy  would  have  been  void  at  once. 

SAME— ILLEGAL  TRAFFIC 

29.  It  is  an  implied  condition  that  a  vessel  shall  not  engage 
in  illegal  trade. 

This  is  but  another  phase  of  the  principle  that  a  contract 
tainted  with  illegality  is  void.  Hence  any  trade  which  con- 
templates dealing  with  an  alien  enemy,  or  a  violation  of  the 
revenue  laws  of  the  country  whose  law  governs  the  policy, 
renders  the  contract  void.72 

Care  must  be  taken  to  remember  the  difference  between 
the  effect  of  illegal  trade  known  to  the  parties  and  its  effect 
when  unknown.  Even  when  equally  known  to  both  par- 
ties, the  contract  is  void,  because  the  court  will  not  lend  its 
aid  to  enforce  such  contracts.  On  the  other  hand,  such  a 
voyage  known  to  one  party  and  unknown  to  the  other  is 
void  on  a  different  principle,  namely,  that  the  failure  of  the 
insured  to  give  the  underwriter  information  of  the  charac- 
ter of  the  trade  avoids  the  policy  on  the  ground  of  misrep- 
resentation or  concealment. 

7i  3  Cranch,  357,  2  L.  Ed.  466. 

§  29.     72  Jansen  v.  Mines  Co.,  [1902]  A.  C.  484. 


08  GENERAL  AVERAGE   AND   MARINE   INSURANCE        (Ch.  3 

An  interesting  case  on  this  subject  is  the  decision  of  Mr. 
Justice  Story  in  ANDREWS  v.  ESSEX  FIRE  &  MARINE 
INS.  CO.73  There  insurance  had  been  effected  on  the  car- 
go to  proceed  to  Kingston,  Jamaica,  and,  if  not  allowed  to 
sell  there,  then  to  Cuba.  It  was  known  to  both  parties  that 
the  British  government  forbade  American  vessels  carrying 
such  cargoes  there,  but  both  parties  thought  that  the  pro- 
hibition might  be  removed  by  the  time  the  vessel  landed. 
The  court  held  that  the  knowledge  of  the  underwriters  that 
the  trade  was  illicit  did  not  make  them  assume  that  risk, 
and  that  it  was  a  risk  not  covered  by  the  policy. 

In  Clark  v.  Protection  Ins.  Co.,74  which  also  was  a  deci- 
sion of  Mr.  Justice  Story,  when  the  ship  arrived  at  the  port 
of  New  Orleans  the  master  took  on  board  a  chain  cable, 
which  had  been  bought  at  his  request  in  Nova  Scotia, 
brought  there  on  another  ship,  and  smuggled  on  board  his 
vessel.  After  this  she  sailed  from  the  port  of  New  Or- 
leans, and  was  lost.  The  underwriters  contended  that  this 
act  vitiated  the  entire  insurance.  The  court  held,  however, 
that,  as  the  insurance  was  originally  valid,  any  subsequent 
illegality  in  the  voyage  did  not  affect  the  insurance  as  to 
property  not  tainted  with  the  illegality,  although  no  re- 
covery could  be  had  for  the  special  property  which  was  so 
tainted. 

In  Craig  v.  United  States  Ins.  Co.,75  an  American  during 
the  war  between  the  United  States  and  England  took  out 
a  British  license.  Mr.  Justice  Washington  held  that,  as  this 
was  an  illegal  voyage  throughout,  there  could  be  no  rem- 
edy upon  an  insurance  policy  covering  it. 

Calbreath   v.   Gracy 7i   involved   a   somewhat   similar  ques- 

733  Mason,  6,  Fed.  Cas.  No.  374. 

7*  1  Story.  109,  Fed.  Cas.  No.  2,832.  Here  the  penalty  of  for- 
feiture Imposed  by  the  revenue  law  for  smuggling  was  upon  the 
vessel  bringing  the  cable,  not  upon  the  vessel  receiving  it. 

75  Fed.  Cas.  No.  3,340,  Pet.  C.  C.  410. 

7c  1  Wash.  C.  C.  219,  Fed.  Cas.  No.  2,290.     Bee,  also,  Schwartz  v. 


29)  CONDITIONS   IN   CONTRACTS  OF   INSURANCE 


69 


tion,  though  the  warranty  in  that  case  was  express,  and 
not  implied.  The  warranty  was  of  neutrality,  the  vessel 
and  cargo  being  warranted  as  American,  but  during  the 
voyage  she  was  documented  as  Spanish,  and  while  so  doc- 
umented was  captured  by  a  foreign  privateer,  and  after- 
wards recaptured  by  a  British  privateer.  The  court  held 
that  the  warranty  that  the  vessel  was  American  implied  a 
warranty  that  there  should  be  the  necessary  documents  to 
show  it,  and  that  the  act  of  the  insured  in  having  their  ves- 
sel documented  as  Spanish  defeated  their  right  of  recovery. 

Violation  of  Revenue  Laws  of  Another  Country 

It  is  a  principle  of  English  law  that  the  English  courts 
pay  no  attention  to  the  revenue  laws  of  another  country; 
and  therefore  it  is  not  illegal  per  se  to  endeavor  to  smuggle 
goods  into  another  country.  As  such  an  act  would  increase 
the  risk,  failure  to  tell  the  underwriter,  at  the  time  of  ef- 
fecting the  insurance,  that  it  was  contemplated,  would  be 
a  concealment,  and  avoid  the  policy  on  that  ground.  But, 
if  both  the  underwriter  and  insured  knew  that  such  action 
was  contemplated,  the  policy  would  be  valid,  although  un- 
der exactly  similar  circumstances  an  attempt  to  smuggle 
into  England  would  be  an  illegal  contract,  and  avoid  the 
policy. 

Mr.  Parsons,  in  his  work  on  Marine  Insurance,77  states 
this  as  a  general  principle  of  insurance  law,  equally  apply- 
ing to  this  country,  and  cites  some  American  decisions  to 
sustain  him.  One  of  these  is  the  decision  of  Mr.  Justice 
Story  in  Andrews  v.  Essex  Fire  &  Marine  Ins.  Co.,  above 
referred  to;  and  certainly  in  that  opinion  the  justice  seems 
to  assume  that  the  underwriters  would  be  bound  if  they 
knew  that  illegal  trade  with  a  port  of  a  foreign  country  was 

Insurance  Co.  of  North  America,  3  Wash.  C.  C.  117,  .Fed.  Cas.  No. 
12,504. 

77  i  Pars.  Mar.  Ins.  p.  34.  In  Gow,  Mar.  Ins.  (London,  1913)  269, 
this  doctrine  is  characterized  as  a  "slight  obliquity  of  vision,  or  a 
temporary  blindness  of  justice." 


70  GENERAL  AVERAGE   AND  MARINE   INSURANCE       (Ch.  3 

contemplated.  The  decision  cannot  be  considered  as  abso- 
lutely in  point,  as  the  underwriters  were  held  not  liable  on 
another  ground. 

Insurance  on  vessels  or  goods  engaged  in  blockade  run- 
ning is  not  illegal.  Such  a  business  is  not  criminal,  or  im- 
moral, or  against  public  policy.  It  only  affects  the  bellig- 
erent who  has  established  the  blockade.  Neutrals  may  run 
it  if  they  can,  and  their  only  risk  is  of  being  caught.  A  ves- 
sel cannot  be  seized  on  a  subsequent  voyage  for  such  an 
act,  which  shows  that  there  is  nothing  immoral  about  it. 
Accordingly  such  insurance  is  common.78 

But  it  is  criminal  to  violate  the  revenue  laws  of  anoth- 
er country,  if  made  so  by  those  laws ;  and  such  violation 
should  be  against  public  policy  in  any  country,  and  render 
a  contract  based  upon  such  act  void,  even  as  between  the 
parties. 

In  Oscanyan  v.  Winchester  Arms  Co.,79  a  Turkish  con- 
sul living  in  this  country  made  a  contract  with  the  Win- 
chester Arms  Company  by  which  he  was  to  receive  a  com- 
mission on  all  the  arms  of  that  company  which  he  influ- 
enced his  government  to  buy.  When  he  sued  for  such  com- 
missions, the  Supreme  Court  decided  that  the  contract  was 
void  as  against  public  policy,  and  not  enforceable.  It  was 
urged  upon  the  court  that,  while  such  contracts  were  void 
under  our  law,  they  were  quite  the  proper  thing  under 
Turkish  law,  and  that  it  was  a  recognized  right  of  Turkish 
officials  to  serve  their  government  in  that  way.  The  Su- 
preme Court,  however,  repudiated  the  argument,  and  held 
that  it  was  a  question  regarding  our  own  citizens,  and 
that,  if  such  transactions  might  have  the  effect  of  demoral- 
izing them,  it  would  not  enforce  any  rights  based  upon 
them.  This  decision,  though  not  exactly  in  point  on  the 
question  above  discussed,  would,  at  least,  indicate  a  pos- 

78  Maritime  Ins.  Co.,  Ltd.,  v.  M.  S.  Dollar  S.  S.  Co.,  177  Fed.  127, 
Kilt  ('.  C.  A.  547.     Gow,  Mar.  Ins.  270. 
™  103  U.  S.  261,  26  L.  K<1.  539. 


§  30)  PROVISIONS  AS   TO   RISK   AND  PERILS  71 

sibility  that  the  Supreme  Court  would  think  it  just  as  illegal 
to  defraud  a  foreign  government  by  smuggling  as  by  giving 
commissions  on  arms  purchased  for  it. 

THE  POLICY  AND  ITS  PROVISIONS  AS  TO  RISK 
AND   PERILS   INSURED  AGAINST 

30.  The  written  contract  of  insurance  is  called  a  "policy." 

The  better  opinion  is  that  the  word  "policy"  is  from  the 
Latin  "polliceor" — "I  promise."  The  forms  of  policies 
.vary.  The  most  common  is  the  English  form,  which  has 
been  in  use  for  a  long  time,  and  the  American  forms  in  use 
in  Boston  and  New  York.  These  vary  materially  in  their 
general  provisions,  and,  of  course,  the  stipulations  in  them 
are  varied  to  suit  the  special  circumstances. 

The  English  form  will  be  found  in  appendix  No.  1  of 
Park  on  Insurance.  It  has  been  frequently  criticised  by  the 
courts  as  ambiguous  and  inartificial,  but  its  various  provi- 
sions have  now  been  so  generally  construed  that  it  is  well 
understood.80 

A  good  example  of  the  American  form  will  be  found  in 
SUN  MUT.  INS.  CO.  v.  OCEAN  INS.  CO.81  This  was  a 
reinsurance  policy  on  goods,  but  the  important  clauses 
commonly  in  use  will  be  found  embodied  in  it. 

Of  the  Beginning  and  End  of  the  Risk 

The  clause  in  the  English  form  bearing  upon  this  is  word- 
ed as  follows:  "Beginning  the  adventure  upon  the  said 
goods  and  merchandise  from  the  loading  thereof  aboard 
the  said  ship  *  *  *  upon  the  said  ship,"  etc.,  "and  so 
shall  continue  and  endure  during  her  abode  there,  upon  the 
said  ship,"  etc.  "And,  further,  until  the  said  ship,  with  all 
her  ordnance,  tackle,  apparel,"  etc.,  "and  goods  and  mer- 

§  30.  s0  The  common  or  "stem"  form  of  the  English  Lloyds  is  given 
in  full  in  Gow  on  Marine  Insurance,  29. 

si  107  U.  S.  485,  1  Sup.  Ct.  5S2,  27  L.  Ed.  337. 


72  GENERAL   AVERAGE   AND   MARINE    INSURANCE        (Ch.  3 

chandise  whatsoever  shall  be  arrived  at  upon  the 

said  ship,"  etc.,  "until  she  hath  moored  at  anchor  twenty- 
four  hours,  in  good  safety ;  and  upon  the  goods  and  mer- 
chandises, until  the  same.be  there  discharged  and  safely 
landed." 

The  American  policy  above  referred  to  expresses  all  this 
more  simply,  as  follows :  "Beginning  the  adventure  upon 
the  said  goods  and  merchandise  from  and  immediately  fol- 
lowing the  loading  thereof  on  board  of  the  said  vessel  at 

■ aforesaid,  and  so  shall   continue   and   endure  until 

the  said  goods  and  merchandise  shall  be  safely  landed  at 
aforesaid." 

In  filling- up  the  blank  indicating  the  voyage,  the  initial 

point  is  frequently   described   as   "at  and   from  • to 

."     The  meaning  of  these  words  varies  according  to 

circumstances.  They  cover  injuries  received  in  the  initial 
port  in  the  ordinary  course  of  preparing  for  the  voyage, 
provided  the  delay  is  not  unreasonable.  For  instance,  the 
LJSCARD  82  was  a  case  of  insurance  on  a  cargo  of  wheat 
"at  and  from  New  York,"  and  bound  for  Lisbon.  After  the 
loading  of  the  vessel,  the  signing  of  her  bills  of  lading,  and 
other  preparations  to  leave  port,  the  vessel  cast  off  her  lines 
for  the  purpose  of  starting,  but,  on  account  of  some  trifling 
derangement  of  her  engines,  again  made  fast  to  her  wharf. 
While  lying  there  she  was  run  into  by  a  barge.  She  was 
surveyed,  pronounced  seaworthy,  and  started,  meeting  very 
heavy  weather,  which  caused  water  to  damage  the  wheat. 
The  court  held  that  the  policy  had  attached  at  the  time  of 
this  collision. 

In  Haughton  v.  Empire  Marine  Ins.  Co.83  a  vessel  while 

82  (D.  C.)  56  Fed.  44;  London  Assurance  v.  Coinpanhia  De  Moagens 
Do  Barreiro,  15  C.  C.  A.  379,  68  Fed.  247;  Id.,  167  U.  S.  1 19,  17 
Sup.  ( ft  785,  42  L.  Ed.  113.  As  to  the  meaning  of  "breaking  ground," 
see  1  Pars.  Mar.  Ins.  ?>~u  el  seq.;  2  Pars.  Mar.  Ins.  48,  49.  Ill  the 
Gracie  D.  Chambers,  253  Fed.  L82,  184,  165  C.  C.  A.  82.  Judge  Ward 
says  that  a  ship  had  broken  ground  "if  she  had  sailed  a  mile." 

83  L.  K.  1  Ex.  206. 


§  30)  PROVISIONS  AS   TO   RISK  AND   PERILS  73 

at  sea  was  insured  "lost  or  not  lost,  at  and  from  Havana  to 
Greenock."  In  entering  the  harbor  of  Havana  she  ground- 
ed, and  received  damage.  The  court  held  that  under  such 
circumstances  the  words  were  used  in  a  geographical  sense, 
the  ship  being  in  the  geographical  limits  of  the  harbor  of 
Havana  in  the  sense  of  the  policy,  and  that,  therefore,  the 
policy  had  attached.  In  this  case  the  injury  was  received 
from  the  anchor  of  another  ship  in  the  harbor  after  her  ar- 
rival within  its  limits. 

Seamans  v.  Loring  84  was  a  decision  of  Mr.  Justice  Story. 
In  reference  to  the  meaning  of  these  words  he  says :  "The 
next  question  is,  at  what  time,  if  ever,  did  the  policy  at- 
tach? The  insurance  is  'at  and  from,'  etc.  What  is  the 
true  construction  of  these  words  in  policies  must,  in  some 
measure,  depend  upon  the  state  of  things  and  the  situation 
of  the  parties  at  the  time  of  underwriting  the  policy.  If  at 
that  time  the  vessel  is  abroad  in  a  foreign  port,  or  expected 
to  arrive  at  such  port  in  the  course  of  the  voyage,  the  policy, 
by  the  word  'at,'  will  attach  upon  the  vessel  and  cargo  from 
the  time  of  her  arrival  at  such  port.  If,  on  the  other  hand, 
the  vessel  has  been  at  no  time  in  such  port  without  refer- 
ence to  any  particular  voyage,  the  policy  will  attach  only 
from  the  time  that  preparations  are  begun  to  be  made  with 
reference  to  the  voyage  insured."  In  this  case  there  was  an 
unreasonable  delay  in  sailing,  and  he  instructed  the  jury 
that  such  an  unreasonable  and  unnecessary  delay  prevented 
the  policy  from  attaching  during  this  preparation,  and  that 
the  policy  did  not  attach  until  the  vessel  began  her  prep- 
arations for  the  voyage  insured. 

As  to  the  question  when  the  voyage  terminates,  the 
courts  have  held  that  it  lasts,  under  the  language  of  the 
policy,  until  she  has  been  moored  twenty- four,  hours  in  good 
safety,  and  that  a  vessel  which  arrives  as  a  wreck  incapa- 
ble of  repair,  and  is  lost  in  the  port  of  final  destination  un- 
der such  circumstances,  even  after  being  moored,  has  never 

s*  1  Mason,  127,  Fed.  Cas.  No.  12.5S3. 


74  GENERAL  AVERAGE   AND  MARINE   INSURANCE       (Ch.  3 

arrived  "in  good  safety,"  in  the  meaning  of  this  clause,  and 
that,  therefore,  the  underwriters  are  liable.85 

An  interesting  case  on  the  meaning  of  these  words  "in 
good  safety"  is  LIDGETT  v.  SECRETAN.86  There  the 
ship  Charlemagne  insured  from  London  to  Calcutta,  with 
this  clause  in  the  policy,  sustained  considerable  damage  at 
sea,  so  as  to  require  constant  pumping,  but  still  not  so  seri- 
ous as  to  make  her  an  absolute  wreck.  She  arrived  at  Cal- 
cutta in  this  condition  on  October  28,  1866.  After  unload- 
ing she  was  taken  on  November  12th  to  a  dry  dock  for  sur- 
vey and  repairs,  and  was  destroyed  by  accidental  fire  on  De- 
cember 5th.  The  court  held  that,  as  she  had  arrived,  and 
been  moored  for  twenty-four  hours  in  good  safety  as  a 
ship,  and  not  as  a  mere  wreck,  the  risk  had  terminated,  and 
the  underwriters  were  liable  for  the  loss  incurred  before 
entering  the  port,  but  not  for  the  fire  which  had  happened 
after  such  anchoring. 

The  anchoring  must  be  at  the  place  of  final  discharge. 
Coming  to  anchor  in  port  with  the  intention  of  entering  the 
dock  afterwards  is  not  a  final  mooring  in  the  sense  of  this 
clause.87 

The  Perils  Insured  Against 

The  ordinary  language  in  an  English  policy  enumerating 
the  perils  is  as  follows :  "Touching  the  adventures  and 
perils  which  we,  the  assurers,  are  content  to  bear,  and  do 
take  upon  us  in  this  voyage,  they  are  of  the  seas,  men-of- 
war,  fire,  enemies,  pirates,  rovers,  thieves,  jettisons,  letters 
of  mart  and  countermart,  reprisals,  takings  at  sea,  arrests, 
restraints,  and  detainments  of  all  kings,  princes,  and  peo- 

se  Sliawe  v.  Felton, -2  East,  109.     See,  also,  as  to  the  termination 
of  the  voyage  or*  risk,  Alaska  Banking  &  Safe  Deposit  Co.  v.  Mari- 
time  Tns.   Co.   (D.   C.)   15G   Fed.  710;    Conifoot  v.   Assurance  Corp., 
[1903]  2  K.  B.  363. 
'•  L.    K.  5  C.  P.  100. 

■  Samuel  v.  Assurance  Co.,  8  B.  &  C.  (15  E.  C.  L.  66)  119,  118 
Reprint,  087. 


§  31)  PROVISIONS   AS   TO    RISK  AND   PERILS  75 

pie  of  what  nation,  quality,  or  condition  soever,  barratry  of 
the  masters  and  mariners,  and  all  other  perils,  losses,  or 
misfortunes  that  have  or  shall  come  to  the  hurt,  detriment, 
or  damage  of  the  said  goods  and  merchandises  and  ship." 
The  "restraint  of  princes"  clause  refers  to  acts  of  state  or 
acts  authorized  by  the  sovereign  authority.88  It  does  not 
cover  losses  caused  by  riots.89 

SAME— PERILS  OF  THE  SEAS 

31.  "Perils  of  the  seas"  mean  all  losses  or  damage  which 
arise  from  the  extraordinary  action  of  the  wind 
and  sea,  or  from  extraordinary  causes  external  to 
the  ship,  and  originating  on  navigable  waters. 

The  phrase  does  not  cover  ordinary  wear  and  tear,  nor 
does  it  cover  rough  weather  or  cross  seas.  There  must  be 
something  extraordinary  connected  with  it.90  Under  this 
principle  the  Supreme  Court  has  held  that  injury  to  a  ves- 
sel from  worms  in  the  Pacific,  if  an  ordinary  occurrence  in 
that  locality,  is  not  included  in  the  phrase.91 

On  the  other  hand,  injuries  received  from  accidentally 
striking  the  river  bank  in  landing,  in  consequence  of  which 
the  vessel  sank,  are  included  in  the  term.92 

It  also  covers  a  loss  caused  by  a  jettison  of  part  of  the 
cargo.93 

In  Potter  v.  Suffolk  Ins.  Co.,94  Mr.  Justice  Story  held 
that  injury  caused  to  a  ship  by  striking  on  some  hard  sub- 

ss  Miller  v.  Insurance  Co.,  [1902]  2  K.  B.  G94 ;  [1903]  1  K.  B.  712; 
Robinson  G.  M.  Co.  v.  Ins.  Co.,  [1904]  A.  C.  359. 

soNesbitt  v.   Lushington,  4  T.  R.  7S3,  100  Eng.  Reprint,  1300. 

§  31.     so  Gulnare  (C.  C.)  42  Fed.  861. 

si  Hazard  v.  New  England  M.  Ins.  Co.,  8  Pet.  557,  8  L.  Ed.  1043. 

92  Seaman  v.  Enterprise  Fire  &  Marine  Ins.  Co.  (C.  C.)  21  Fed. 
778. 

9  3  Lawrence  v.  Minturn,  17  How.  100,  15  L.  Ed.  58. 

94  2  Suinn.  197,  Fed.  Cas.  No.  11,339.  See,  also,  Wells  v.  Hopwood, 
SB.  &  Ad.  20,  110  Eng.  Reprint,  8. 


76  CEXERAL  AVERAGE   AND  MARESTE   INSURANCE       (Ch.  3 

stance  in  the  harbor,  due  to  the  ebbing  of  the  tide,  is  a  loss 
by  a  peril  of  the  sea,  unless  it  was  mere  wear  and  tear,  or 
unless  it  was  an  ordinary  and  natural  occurrence.  Injuries 
caused  by  the  negligence  of  the  master  or  crew  are  also 
covered,  unless,  there  is  an  express  stipulation  against  them 
— as  is  not  uncommon.95 

In  policies  which  contain  an  exception  protecting  the  in- 
surer from  injuries  caused  by  lack  of  ordinary  care  and  skill 
of  the  navigators,  it  is  the  tendency  of  the  courts  to  con- 
strue this  phrase  strictly  against  the  insurer.  They  con- 
strue it  in  such  cases  to  apply  rather  to  the  general  qualifi- 
cations of  the  crew  than  to  their  carelessness  in  particular 
instances.96 

The  courts  also  hold  that  injuries  received  by  collision 
with  another  vessel  are  covered,  though  not  injuries  inflict- 
ed. This  question  is  discussed  in  the  case  of  GENERAL 
MUT.  INS.  CO.  v.  SHERWOOD,97  in  which  the  opinion 
was  rendered  by  Mr.  Justice  Curtis. 

In  Peters  v.  Warren  Ins.  Co.,98  the  court  held  that  under 
the  term  "perils  of  the  sea"  the  insured  could  recover  not 
only  the  damage  received  by  his  vessel,  but  the  amount 
that  he  had  to  pay  in  general  average,  under  the  provisions 
of  the  German  law,  to  the  other  vessel.  As  to  the  latter 
part  of  this  decision,  however,  it  turned  upon  the  peculiar 
provisions  of  the  German  law  of  average,  making  the  ves- 
sel liable  in  such  case  even  without  fault.  But  it  was  not 
intended  by  the  Supreme  Court  in  that  case  to  decide  the 
general  proposition  that  the  above  term  quoted  in  the  pol- 
icy gave  the  right  to  recover  for  injuries  inflicted. 

In  this  respect  the  law  of  England  is  the  same  as  that  of 
America.99 

»5  Rogers  v.  aJtna  Ins.  Co.,  35  C.  C.  A.  396,  95  Fed.  103 ;    Orient 
Mot  Ins.  Co.  v.  Adams,  123  U.  S.  67,  8  Sup.  Ct.  68,  ::i  U  Ed.  63. 
»e  Egbert  v.  St.  Paul  Fire  &  Marine  Ins.  Co.  (D.  C)  71  Fed.  739. 
07  14  How.  357,  366  367,  14  L.  Ed.  i'/J. 
»s  14  Pet.  99,  10  L.  Ed.  371. 
09  De  Vaux  v.  Salvador,  4  A.  &  B.  (31  E.  C.  L.  195)  420. 


§  32)  PROVISIONS   AS   TO   RISK  AND  PERILS  77 

The  clause  covers  fire  caused  by  negligence  of  the  crew, 
the  proximate  cause  in  that  case  being  taken  to  be  the 
fire ;  but,  if  the  fire  was  caused  not  by  the  mere  negligence, 
but  by  design,  then  the  proximate  cause  would  not  be  the 
fire,  but  the  design,  and  the  underwriter  would  be  liable  if 
his  policy  covered  barratry,  but  not  if  otherwise.1 

In  the  G.  R.  Booth,  Mr.  Justice  Gray  discusses  the  mean- 
ing of  the  clause  in  a  bill  of  lading,  and  says  that  it  has  the 
same  meaning  as  in  an  insurance  policy,  except  that  negli- 
gence of  the  master  has  a  different  effect  in  the  two  con- 
tracts.2 

SAME— BARRATRY 

32.  Barratry  is  an  act  committed  by  the  master  or  mariners 
of  the  ship  for  some  unlawful  or  fraudulent  pur- 
pose, contrary  to  their  duty  to  their  owners, 
whereby  the  latter  sustain  an  injury. 

The  above  is  the  definition  given  by  Justice  Story  in 
Marcardier  v.  Chesapeake  Ins.  Co.3 

The  meaning  of  the  term  is  discussed  at  great  length  and 
learnedly  in  PATAPSCO  INS.  CO.  v.  COULTER.4  It 
seems  to  exclude  the  idea  of  mere  negligence,  to  involve 
at  least  some  element  of  design  or  intention  or  negligence 
so  gross  as  to  be  evidence  of  such  design  or  intention.  In 
that  case  the  final  decision  was  that,  where  the  loss  was 
caused  by  a  fire,  and  it  appeared  that  the  master  and  crew 
did  not  take  proper  steps  to  extinguish  the  fire,  the  cause 
of  loss  was  the  fire,  and  not  the  negligence  of  the  crew, 
and  therefore  they  held  the  insurer  liable. 

In  the  more  recent  case  of  New  Orleans  Ins.  Co.  v.  Albro 

i  Waters  v.  Merchants'  Louisville  Ins.  Co.,  11  Pet.  213,  9  L.  Ed.  691. 
2  171  U.  S.  450,  19  Sup.  Ct.  9,  43  L.  Ed.  234. 
§  32.     3  8  Craneh,  39,  3  L.  Ed.  4S1. 
4  3  Pet.  222,  7  L.  Ed.  659. 


78  GENERAL  AVERAGE   AND   MARINE   INSURANCE       (Ch.  3 

Co.,5  a  voyage  had  been  broken  up,  and  the  cargo  sold.  It 
was  charged  that  the  master  made  the  sale  in  a  method 
knowingly  contrary  to  his  best  judgment,  and  to  the  injury 
of  the  parties  interested.  The  court  held  that  this,  if  so, 
would  constitute  barratry. 

As  barratry  is  something  done  to  the  prejudice  of  the 
owners,  it  follows  that  the  master  who  is  sole  owner  can- 
not commit  barratry,  as  a  man  can  hardly  cheat  himself ; 
but,  if  he  is  part  owner,  he  can  be  guilty  of  barratry  towards 
his  other  owners.6 

SAME— THEFTS 

33.  Thefts  in  a  marine  policy,  according  to  the  better  opin- 
ion, cover  thefts  from  without  the  ship,  and  do  not 
cover  thefts  by  the  crew. 

This  is  the  decision  according  to  the  great  preponderance 
of  English  authority.7  Parsons,  in  his  Marine  Insurance, 
states  that  the  weight  of  American  authority  would  make 
the  insurers  liable  for  larceny  by  the  crew.8  His  citations, 
however,  hardly  seem  strong  enough  to  meet  the  reasoning 
of  the  English  cases. 

c  112  U.  S.  506,  5  Sup.  Ct.  2S9,  2S  L.  Ed.  S09.  In  Compania  de 
Navigation  La  Flecha  v.  Brauer,  168  U.  S.  US,.  18  Sup.  Ct.  12,  42  L. 
Ed.  398,  Mr.  Justice  Gray  held  that  "there  was  no  barratry,  because 
there  was  neither  intentional  fraud,  nor  breach  of  trust,  nor  will- 
ful violation  of  law,  one  of  which,  at  least,  is  necessary  to  constitute 
barratry." 

b  Marcardier  v.  Chesapeake  Ins.  Co.,  S  Cranch,  39,  3  L.  Ed.  -LSI ; 
Jones  v.  Nicholson,  10  Ex.  2S. 

§  33.  i  Taylor  v.  Steamship  Co.,  L.  R.  9  Q.  B.  546.  This  case 
also  holds  that  thefts  are  not  covered  by  a  clause  insuring  against 
"damage  to  goods." 

&1  Pars.  .Mar.  Ins.  563-566,  and  notes'. 


34)  PROVISIONS   AS   TO   RISK  AND   PERILS  79 


SAME— ALL  OTHER  PERILS 

34.  "All   other   perils,"   etc.,   mean   all  other  perils   of  the 
same  general  character. 

These  words,  according  to  the  construction  placed  up- 
on them  by  the  courts  under  the  rule  of  ejusdem  generis, 
are  intended  as  a  general  safeguard  to  cover  losses  similar 
to  those  guarded  against  by  the  special  enumeration,  and 
not  in  as  sweeping  a  sense  as  the  language  would  mean. 

The  English  Marine  Insurance  Act,  1906  (under  the  rules 
of  construction  annexed  to  the  first  schedule  of  section  30), 
expresses  this  as  "only  perils,  similar  in  kind  to  the  perils 
specifically  mentioned  in  the  policy." 

But  "all  risks  by  land  and  water"  cover  all  risks  what- 
soever.9 

The  leading  case  as  to  the  meaning  of  these  words  is 
THAMES  &  M.  MARINE  INS.  CO.  v.  HAMILTON,10 
wherein  Lord  Bramwell,  in  his  opinion,  in  reference  to  the 
meaning  of  these  words,  uses  the  following  language : 
"Definitions  are  most  difficult,  but  Lord  Ellenborough's 
seems  right :  'All  cases  of  marine  damage  of  the  like  kind 
with  those  specially  enumerated,  and  occasioned  by  sim- 
ilar causes.'  I  have  had  given  to  me  the  following  defini- 
tion or  description  of  what  would  be  included  in  the  general 
words :  'Every  accidental  circumstance  not  the  result  of 
ordinary  wear  and  tear,  delay,  or  of  the  act  of  the  assured, 
happening  in  the  course  of  the  navigation  of  the  ship,  and 
incidental  to  the  navigation,  and  causing  loss  to  the  sub- 
ject-matter of  insurance/  Probably  a  severe  criticism 
might  detect  some  faults  in  this.  There  are  few  definitions 
in  which  that  could  not  be  done.  I  think  the  definition  of 
Lopes,  L.  J.,  in  Pandorf  v.  Hamilton  [16  Q.  B.  D.  629], 
very  good :     'In  a  seaworthy  ship,  damage  of  goods  caused 

§  34.     9  Schlos.s  v.  Stevens,  [1906]  2  K.  B.  G65. 
io  12  A.  C.  484. 


80  GENERAL  AVERAGE   AND  MARINE   INSURANCE       (Ch.  3 

by  the  action  of  the  sea  during  transit,  not  attributable  to 
the  fault  of  anybody,'  is  a  damage  from  a  peril  of  the  sea. 
I  have  thought  that  the  following  might  suffice :  'All  per- 
ils, losses,  and  misfortunes  of  a  marine  character,  or  of 
a  character  incident  to  a  ship  as  such.'  "  And  Lord  Hersch- 
ell,  in  his  opinion,  discusses  the  cases  which  had  previous- 
ly passed  upon  them.  The  case  was  an  insurance  under  a 
time  policy,  in  which,  under  English  law,  as  previously 
stated,  there  is  no  implied  warranty.  The  donkey  engine 
was  being  used  pumping  water  into  the  main  boilers,  but, 
owing  to  the  fact  that  a  valve  was  closed  which  ought  to 
have  been  left  open,  the  water  was  forced  into  and  split 
open  the  air  chamber  of  the  donkey  pump.  The  court 
held  that,  whether  the  closing  of  the  valve  was  accidental 
or  due  to  the  negligence  of  the  engineer,  it  was  not  such  an 
accident  as  was  covered  either  by  the  words  "perils  of  the 
sea,"  or  by  the  general  saving  clause  above  quoted. 

PROXIMATE  CAUSE  OF  LOSS 

35.  Where  an  injury  is  due  to  more  than  one  cause,  the  ef- 
ficient predominating  cause  nearest  the  loss  is  con- 
sidered the  proximate  cause,  though  later  causes 
incidental  thereto  are  also  set  in  motion.  Any 
later  cause,  to  supersede  the  first,  must  be  an  in- 
dependent cause. 

This  definition  is  the  result  of  the  decisions  of  the  Unit- 
ed States  Supreme  Court  in  HOWARD  FIRE  INS.  CO.  v. 
NORWICH  &  N.  Y.  TRANSP.  CO.11  and  the  G.  R.  Booth,12 
where  the  subject  is  thoroughly  discussed. 

The   question  what  is  the  proximate  and  what  the  re 
mote  cause   gives   rise   to   some   of   the   most   difficult   points 
in   marine  insurance   law.     The  only  general   rule  is  that 

§  35.    ii  V2  Wall.  194,  20  L.  Ed.  378. 

■  -•  171  D.  S.   150,   L9  Sup.  Ot.  9,  43  L.  Ed.  2P.1. 


§  35)  PROXIMATE   CAUSE   OP  LOSS  81 

laid  down  above,  and,  like  most  general  rules,  its  difficul- 
ties lie  in  its  application. 

In  IONIDES  v.  UNIVERSAL  MARINE  INS.  CO.,13  a 
vessel  loaded  with  coffee  was  insured  under  the  ordinary 
policy,  which  contained  a  warranty  "free  from  all  conse- 
quences of  hostilities."  It  was  during  the  Civil  War,  and 
the  Confederates  had  extinguished  Hatteras  Light  as  a 
means  of  embarrassing  the  navigation  of  the  Federal  ships. 
The  captain,  on  his  way  from  New  Orleans  to  New  York, 
supposing  that  he  had  passed  Cape  Hatteras,  when  he  had 
not,  changed  his  course  in  such  a  way  that  his  vessel  went 
ashore.  The  Confederate  authorities  took  him  and  his  crew 
as  prisoners.  Federal  salvors  came  down,  and  saved  part 
of  the  coffee,  and  might  have  saved  more  but  for  the  inter- 
ference of  Confederate  troops.  In  a  day  or  two  the  vessel 
was  lost.  The  court  held,  under  these  circumstances,  that, 
as  to  that  part  of  the  coffee  which  remained  aboard,  it  was 
lost  by  a  peril  of  the  sea,  that  being  the  proximate  cause, 
and  not  the  act  of  the  Confederates  in  extinguishing  the 
light ;  but  that  as  to  the  cargo  which  was  saved,  and  as  to 
that  part  which  could  have  been  saved  but  for  the  inter- 
ference of  the  Confederate  authorities,  the  proximate  cause 
was  the  consequence  of  hostilities,  and  that  as  to  that  part 
the  underwriters  were  not  liable. 

In  Mercantile  S.  S.  Co.  v.  Tyser,14  the  insurance  was  on 

is  14  C.  B.  N.  S.  (108  E.  C.  L.)  259,  143  Reprint,  445.  During 
the  World  War,  it  has  been  customary  to  insure  ships,  whether 
through  government  insurance  or  otherwise,  against  war  risks  which 
would  not  be  covered  by  the  ordinary  provisions  of  a  marine  policy. 
The  same  question  has  also  arisen  in  the  construction  of  similar 
provisions  in  charter  parties,  and  it  has  been  necessary  in  many 
cases  to  decide  whether  a  given  loss  falls  upon  the  ordinary  insur- 
ance policy  or  the  war  policy,  in  other  words,  whether  it  was  a  war 
risk  or  a  sea  risk.  See  Lobitos  Oil  Fields  v.  Admiralty  Commis- 
sioners, 34  T.  L.  R.  466 ;    British  &  Foreign  S.  S.  Co.  v.  The  King,  34 

1*7  Q.  B.  D.  73.     A  somewhat  analogous  case  is  Williams  v.  Can- 
ton Ins.  Co.,  [1901]  A.  C.  462. 
Huc.nES,ADM.(2D  Ed.) — 6 


82  GENERAL  AVERAGE   AND   MARINE    INSURANCE        (Ch.  3 

freight  during  a  certain  voyage.  The  charter  party  con- 
tained a  clause  that  the  charterers  might  cancel  the  charter 
party  if  the  vessel  did  not  arrive  by  the  1st  of  September. 
The  ship  started  from  England  on  the  7th  of  August,  but 
her  machinery  broke  down,  and  she  had  to  put  back.  The 
time  lost  caused  her  to  arrive  in  New  York  after  the  1st 
of  September,  and  the  charterers  canceled  the  charter  par- 
ty. The  court  held  that  the  proximate  cause  of  the  loss  of 
freight  was  not  the  breaking  down  of  the  machinery,  but 
the  option  exercised  by  the  charterers  of  canceling  the 
charter  party,  and  that,  therefore,  the  underwriters  were 
not  liable. 

In  Dole  v.  New  England  Mut.  Marine  Ins.  Co.,15  a  ves- 
sel was  captured  by  the  Confederate  cruiser  Sumter.  As 
she  could  not  be  brought  into  any  port  of  condemnation, 
her  captors  set  her  on  fire  and  destroyed  her.  The  policy 
contained  a  clause  Avarranted  free  from  capture.  It  was 
argued,  inter  alia,  that  the  proximate  cause  of  the  loss  was 
the  fire,  and  not  the  capture.  Justice  Clifford  held,  how- 
ever, that  the  proximate  cause  was  the  capture  and  the 
acts  of  the  captors,  and  that  the  underwriters  were  not 
liable. 

HOWARD  FIRE  INS.  CO.  v.  NORWICH  &  N.  Y. 
TRANSP.  CO.10  arose  under  a  fire  insurance  policy.  The 
steamer  Norwich  collided  with  a  schooner,  injuring  her 
own  hull  below  the  water  line.  She  rapidly  began  to  fill, 
and  10  or  15  minutes  after  the  collision  the  water  reached 
the  fire  of  the  furnace,  and  the  steam  thereby  caused  blew 
the  fire  around,  and  set  fire  to  the  woodwork  of  the  boat. 
In  consequence,  she  burned  until  she  sank  in  deep  water. 
The  injury  from  the  collision  alone  would  not  have  made 

T.  L.  It.  546,  [1918]  2  K.  R.  S79.  British  India  steam  Nav.  Co.  v. 
Green.  35  T.  L.  R.  209;  Britain  Steamship  Co.  v.  The  King,  Id.  271; 
Anl  Coasters.  Ltd.,  v.  The  King,  Id.  604. 

15  2  Cliff.  394,  Fed.  Cns.  No.  3,966. 

is  12  Wail.  101.  'JO  L.  Ed.  378. 


§§  36-37)  the  loss  83 

her  sink.  The  court  held  that  the  fire  was  the  efficient  pre- 
dominating cause  nearest  in  time  to  the  catastrophe,  and 
that  the  underwriters  were  liable  for  that  part  of  the  injury 
which  was  caused  by  the  fire. 

In  Orient  Mut.  Ins.  Co.  v.  Adams,17  the  master  of  the 
steamer  Alice,  lying  above  the  falls  of  the  Ohio  near  Lou- 
isville, gave  the  signal  to  cast  the  boat  loose,  and  started 
when  she  did  not  have  steam  enough  to  manage  her.  There 
was  no  clause  in  the  policy  exempting  the  insurers  from  lia- 
bility for  the  negligence  of  the  master  or  crew.  The  vessel 
was  carried  over  the  falls,  and  the  court  held  that  the  prox- 
imate cause  was  the  damage  done  by  going  over  the  falls, 
which  was  a  peril  of  navigation,  and  not  the  act  of  the  mas- 
ter, that  being  a  remote  cause. 

A  like  application  of  the  rule  is  made  to  the  sale  of  cargo 
in  an  intermediate  port  of  distress  to  raise  funds.  Such  a 
loss  is  not  recoverable  under  the  policy,  as  the  sea  peril 
that  caused  the  vessel  to  enter  the  port  of  distress  is  deem- 
ed a  remote  cause.18 


THE  LOSS— TOTAL  OR  PARTIAL 

36.  A  loss  may  be  total  or  partial. 

37.  ACTUAL  OR  CONSTRUCTIVE— 

A  total  loss  may  be  actual  or  constructive. 

(a)  There  is  an  actual  total  loss  where  the  subject-matter 

is  wholly  destroyed  or  lost  to  the  insured,  or  where 
there  remains  nothing  of  value  to  be  abandoned  to 
the  insurer. 

(b)  There  is  a  constructive  total  loss  when  the  insured 

has  the  right  to  abandon. 

it  123  U.  S.  67,  8  Sup.  Ct.  68,  31  L.  Ed.  63. 

is- Powell  v.  Gudgeon.  5  Maule  &  S.  431;    Ruckman  v.  Merchants' 
Louisville  Ins.  Co.,  5  Duer  (N.  Y.)  371. 


84  GENERAL  AVERAGE   AND  MARINE   INSURANCE       (Ch.  3 

Actual  Total  Loss  of  Vessel 

An  actual  total  loss  of  a  ship  occurs  when  she  is  so  in- 
jured that  she  no  longer  exists  in  specie  as  a  ship.  If  she 
still  retains  the  form  of  a  ship,  and  is  susceptible  of  repair, 
it  is  not  an  actual  total  loss. 

In  BARKER  v.  JANSON,19  Wills,  J.,  says:  "If  a  ship 
is  so  injured  that  it  cannot  sail  without  repairs,  and  cannot 
be  taken  to  a  port  at  which  the  necessary  repairs  can  be 
executed,  there  is  an  actual  total  loss,  for  that  has  ceased  to 
be  a  ship  which  never  can  be  used  for  the  purpose  of  a 
ship ;  but  if  it  can  be  taken  to  a  port  and  repaired,  though 
at  an  expense  far  exceeding  its  value,  it  has  not  ceased  to 
be  a  ship." 

In  Delaware  Mut.  Safety  Ins.  Co.  v.  Gossler,20  Clifford, 
J.,  uses  substantially  the  same  language. 

Actual  Total  Loss  of  Goods 

There  is  a  total  loss  of  goods  not  only  when  they  are  ab- 
solutely destroyed,  but  when  they  are  in  such  a  state  that 
they  cannot  be  carried  in  specie  to  the  port  of  destination 
without  danger  to  the  health  of  the  crew,  or  when  they  are 
in  such  a  state  of  putrefaction  that  they  have  to  be  thrown 
overboard  from  fear  of  disease.21 

Interesting  questions  arise  when  there  is  an  insurance 
against  total  loss  only  on  goods  and  part  of  the  goods  are 
lost.  If  the  goods  are  all  of  the  same  kind,  and  a  part  of 
them  are  lost,  then,  under  the  ordinary  language  of  the  pol- 
icy, the  loss  would  be  partial  only.  But,  if  there  were  dif- 
ferent kinds  of  goods  insured  under  one  policy,  the  courts 
hold,  unless  the  language  of  the  policy  is  specially  worded 
to  exclude  it,  that  there  is  a  total  loss  of  separate  articles. 
though  there  may  not  be  a  total  loss  of  the  whole. 

This  question  is  discussed  in  Woodside  v.  Canton  Ins. 

§§  36-37.     "L.R.3C.  P.  303. 

20  90  U.  S.  045,  24  L.  Ed.  803.  See,  also,  Fireman's  Fund  Ins.  Co. 
v.  Globe  Nav.  Co.,  230  Fed.  018,  149  C.  C.  A.  61  I. 

2i  Hugg  v.  Augusta  Ins.  Co.,  7  How.  595,  12  L.  Ed.  834. 


§§  36-37)  the  loss  85 

Office.22  That  was  an  insurance  against  total  loss  only,  or, 
what  has  been  held  to  mean  about  the  same  thing,  "war- 
ranted free  from  all  average,"  on  personal  effects  of  the 
master  of  the  vessel.  The  personal  effects  consisted  of  a 
variety  of  different  articles.  The  vessel  was  lost,  and  so 
were  all  the  master's  effects,  except  a  sextant  and  a  few 
small  articles.  The  court  held  that  there  was  a  total  loss  of 
the  different  articles  which  were  not  saved,  although  some 
of  the  personal  effects  were  saved. 

On  the  other  hand,  in  Biays  v.  Chesapeake  Ins.  Co.,23 
the  insurance  was  on  a  cargo  of  hides.  Some  of  the  hides 
were  entirely  lost.  The  court  held,  however,  that  as  the 
insurance  covered  only  one  article,  namely,  hides,  this  was 
a  partial  loss  on  the  entire  subject  of  insurance,  and  not  a 
total  loss  of  some  of  the  different  subjects  of  insurance. 

But  where  the  subject  insured  is  a  single  unit,  though 
composed  of  different  parts,  the  loss  of  one  of  those  parts, 
which  renders  the  others  absolutely  useless,  and  which 
could  not  be  replaced  at  an  expense  less  than  the  cost  of  the 
-entire  unit,  makes  it  a  total  loss. 

In  Great  Western  Ins.  Co.  v.  Fogarty,2*  there  was  insur- 
ance upon  a  sugar-packing  machine  composed  of  various 
different  units.  Some  of  these  parts  were  lost,  and  could 
not  have  been  replaced  for  less  than  the  price  of  a  new  ma- 
chine. Some  were  saved,  but  were  only  valuable  as  scrap 
iron.  The  court  held  that  this  was  a  destruction  of  the 
machine  in  specie,  and  therefore  a  total  loss. 

Actual  Total  Loss  of  Freight 

There  is  a  total  loss  of  freight  whenever  there  is  a  total 
loss   of  cargo  or  when   the  voyage   is   broken   up   and   no 

22  (D.  C.)  S4  Fed.  283;  Canton  Ins.  Office  v.  Woodside,  33  C.  C.  A. 
63.  90  Fed.  301.  See,  also,  Duff  v.  McKenzie,  3  C.  B.  (N.  S.)  16  (91 
E.  C.  L.);  Wilkinson  v.  Hyde.  3  C.  B.  (N.  S.)  30  (91  E.  C.  L.) ; 
Ralli  v.  Janson,  6  E.  &  B.  422,  119  Eng.  Reprint,  922. 

23  7  Cranch,  415,  3  L.  Ed.  389.  See,  also,  Washburn  &  M.  Mfg. 
Co.  v.  Reliance  M.  Ins.  Co.,  179  U.  S.  1,  21  Sup.  Ct.  1,  45  L.  Ed.  49. 

2*  19  Wall.  640,  22  L.  Ed.  216. 


SG  GENERAL   AVERAGE    AND    MARINE    INSURANCE       (Ch.  3 

freight  is  earned.  But  if  the  vessel  can  be  repaired  in  suffi- 
cient time  to  carry  her  cargo  without  frustrating  the  ob- 
jects of  the  voyage  by  delay,  or  the  cargo  is  in  a  condition 
to  be  shipped  by  another  vessel  and  another  vessel  is  pro- 
curable, there  is  not  a  total  loss  of  freight.25 

Partial  Loss 

The  term  "particular  average"  is  nearly  synonymous 
with  "partial  loss,"  and  policies  which  contain  clauses  "war- 
ranted against  particular  average"  or  "warranted  against 
average"  are  practically  policies  insuring  against  total  loss 
only.20 

The  measure  of  recovery  in  case  of  partial  loss  is  strik- 
ingly different  in  marine  and  fire  insurance.  If  a  house  is 
insured  against  fire  for  $5,000,  and  the  value  of  the  house 
is  $10,000  and  the  loss  is  $5,000,  the  insured  recovers  the 
full  value  of  his  policy.  Under  similar  circumstances  in 
marine  insurance,  he  only  recovers  such  proportion  of  the 
loss  as  the  insured  portion  bears  to  the  total  value,  it  being 
considered  that  as  to  that  part  of  the  value  which  is  not 
insured  he  is  his  own  insurer,  and  must  contribute  to  the 
loss  to  that  extent.27     In  arriving  at  these  proportions,  the 

-  5  Hugg  v.  Augusta  Ins.  Co.,  7  How.  593,  12  L.  Ed.  S34 ;  Jordau 
v.  Warren  Ins.  Co.,  1  Story,  342,  Fed.  Cas.  No.  7,524. 

-«  Lowndes  on  Marine  Insurance  (.lid  Ed.)  70,  defines  particular 
average  as  "loss  or  damage  of  the  thing  insured,  not  amounting  to 
total  loss,  and  not  including  the  cost  of  measures  taken  for  its 
preservation  from  a  greater  loss."  Gow  on  Marine  Insurance,  p. 
L89,  defines  it  as  "the  liability  attaching  to  a  marine  insurance  pol- 
icy in  respect  of  damage  or  partial  loss  accidentally  and  immediate- 
ly caused  by  some  of  the  perils  insured  against,  to  some  particular 
interest  (as  the  ship  alone,  or  the  cargo  alone)  which  has  arrived  at 
the  destination  of  the  venture."  In  Kidston  v.  Empire  Marine  In- 
surance  Co..  L.  R.  1  C.  P.  535,  2  C.  P.  357,  the  cost  of  measures 
taken  for  preservation  from  greater  loss  is  excluded  as  particular 
average  and  dubbed  "particular  charges." 

872  Pars.  Mar.  Ins.  405;  Ursula  Bright  S.  S.  Co.  v.  Amsinck  (D. 
C.)  115  Fed.  242;    Peninsular  &  O.  S.  S.  Co.  v.  Atlantic  Mnt.  Ins.  Co 


§  38)  THE   LOSS  87 

actual  value  of  the  subject  insured  is  taken,  except  where 
there  is  an  insured  value  fixed  in  the  policy,  in  which  case 
the  insured  value  is  taken. 


SAME— ABANDONMENT 

38.  Abandonment  is  the  surrender  by  the  insured,  on  a 
constructive  total  loss,  of  all  his  interest,  to  the  in- 
surer, in  order  to  claim  the  whole  insurance. 

(a)  Under  the  American  rule,  if  the  cost  of  saving  and 

repairing  a  vessel  exceed  one-half  her  value  when 
repaired,  the  owner,  by  giving  the  underwriter 
notice  of  abandonment,  may  surrender  his  vessel 
to  the  underwriter,  and  claim  for  a  total  loss. 

(b)  Under  the  English  rule,  he  can  do  the  same  thing 

if  the  ship  is  so  much  injured  that  she  would  not 
be  worth  the  cost  of  repair. 

This  is  the  most  radical  difference  between  the  American 
and  English  law  of  marine  insurance.  Under  the  American 
law,  as  stated  above,  the  right  of  abandonment  is  govern- 
ed by  the  facts  as  they  appear  at  the  time  of  the  abandon- 
ment. If,  therefore,  at  that  time,  under  the  highest  degree 
of  probability,  the  cost  of  saving  and  repairing  the  vessel 
would  exceed  one-half  of  her  value  when  repaired,  the  in- 
sured may  abandon.28 

The  title  of  an  insurer  acquired  by  an  abandonment  re- 
lates back  to  the  disaster.29 

In  the  absence  of  special  stipulations,  the  cost  must  ex- 
ceed one-half  the  value  of  the  vessel  when  repaired  at  the 

(D.  C.)  185  Fed.  172 ;  Atlantic  Mut  Ins.  Co.  v.  Peninsular  &  O.  S.  S. 
Co.,  191  Fed.  84,  114  C.  C.  A.  162. 

§  38.  28  Bradlie  v.  Maryland  Ins.  Co.,  12  Pet.  378,  9  L.  Ed.  1123: 
Royal  Excb.  Assur.  v.  Graham  &  Morton  Transp.  Co.,  166  Fed.  32, 
92  C.  C.  A.  66;  Fireman's  Fund  Ins.  Co.  v.  Globe  Nav.  Co.,  236 
Fed.  618,  149  C.  C.  A.  614. 

20  Gilchrist  v.  Chicago  Ins.  Co.,  104  Fed.  566,  44  C.  C.  A.  43. 


88  GENERAL  AVERAGE   AND   MARINE   INSURANCE       (Ch.  3 

place  of  disaster,  and  the  policy  value  of  the  vessel  or  her 
value  in  the  home  port  is  no  criterion. 

In  consequence  of  these  decisions,  it  has  become  com- 
mon to  provide  in  the  policy  that  the  right  of  abandonment 
shall  not  exist  unless  the  cost  of  repairs  exceeds  one-half 
the  agreed  valuation.  Such  a  stipulation  is  valid,  but 
there  also  the  right  of  abandonment  is  determined  by  the 
facts  as  they  exist  at  the  time,  and  is  not  devested  by  the 
fact  that  the  vessel  may  subsequently  be  saved  for  less.80 
Currie  v.  Bombay  Native  Ins.  Co.31  was  a  case  of  insurance 
on  cargo  and  disbursements.  The  vessel  was  wrecked,  and 
the  captain  made  no  effort  to  save  the  cargo,  deeming  it  im- 
practicable. It  appeared  from  the  facts  that  the  cargo 
could  have  been  partially  saved  if  he  had.  The  ship  was 
a  total  wreck.  The  court  held  that  this  was  not  a  total 
loss  of  the  cargo  by  the  peril  insured  against,  but  that  it 
was  a  total  loss  of  the  disbursements. 

SAME— AGREED  VALUATION 

39.  The  valuation  fixed  in  the  policy  is  binding,  though  it 
may  differ  from  the  actual  value. 

In  passing  upon  the  rights  and  obligations  of  insured  an<1 
underwriters,  the  valuation  in  the  policy,  except  as  above 
stated,  is  taken  as  conclusive  upon  the  parties.  Although 
this  may  sometimes  partake  of  the  nature  of  wager  poli- 
cies, yet  the  convenience  of  having  a  certain  valuation  as  a 
basis  to  figure  on,  and  the  diminution  of  litigation  thereby, 
have  caused  the  courts  to  hold  the  parties  to  their  valua- 
tion. The  firmness  with  which  they  hold  to  this  doctrine 
may  be  judged  by  BARKER  v.  JANSON,32  where,  at  the 

>  orient  Mut.  Ins.  Co.  v.  Adams,  123  U.  S.  67,  8  Sup.  Ct.  68,  ol  L. 
Ed.  63. 

si  L.  R.  3  P.  C.  71'. 

g  39.     ■■-  L.  R.  3  C.  P.  303. 


§  39)  THE   LOSS  89 

time  the  policy  attached,  the  ship,  on  account  of  injuries, 
was  practically  of  no  value  at  all,  yet  the  court  held  both 
parties  bound  by  the  valuation. 

In  North  of  England  Iron  S.  S.  Ins.  Ass'n  v.  Armstrong-,33 
a  policy  of  insurance  was  effected  for  £6,000  on  a  vessel 
valued  at  £6,000.  She  was  sunk  in  collision,  and  the  under- 
writers paid  for  a  total  loss.  Her  real  value  was  £9,000. 
Subsequently  £5,000  was  recovered  from  the  colliding  ves- 
sel. The  court  held  that  it  all  belonged  to  the  underwriter 
by  subrogation  to  the  insured,  and  that  the  assured  could 
not  take  any  part  of  it  in  payment  for  the  actual  valuation 
of  his  vessel  uninsured. 

On  the  other  hand,  in  the  Livingstone 34  the  Circuit 
Court  of  Appeals  for  the  Second  Circuit  held  that,  where 
the  recovery  from  the  wrongdoer  exceeded  the  value  of  the 
policy,  the  underwriter  was  entitled  only  to  such  part  of  the 
recovery  as  reimbursed  him  for  the  amount  paid  out,  and 
that  any  excess  over  the  insured  value  went  to  the  owner 
of  the  ship. 

The  basis  of  the  American  holding  is  that  the  insurer 
'ought  not  in  equity  to  expect  more  than  he  had  paid  out. 
The  basis  of  the  English  holding  is  that  an  abandonment 
vests  the  title  in  the  underwriter  as  of  the  time  of  the  dis- 
aster, that  if  he  subsequently  raises  the  wreck  it  is  his,  that 
the  damages  recoverable  from  the  other  party  are  nothing 
more  than  a  substitute  for  the  wreck,  and  that  the  insured 
was  responsible  for  any  hardship,  as  it  was  the  result  of  the 
undervaluation,  on  the  basis  of  which  he  had  paid  the  pre- 
mium. 

It  must  be  confessed  that  the  English  reasoning  is  sub- 
stantial logic,  if  not  substantial  justice. 

The  idea  that  the  damages  recoverable  from  the  wrong- 
doer are  a  substitute  for  the  vessel  is  elementary  in  Ameri- 

3  3  L.  R.  5  Q.  B.  244. 

s*  130  Fed.  746,  65  C.  C.  A.  610,  reversing  a  strong  opinion  by 
'.Judge  Hazel  (D.  C.)  122  Fed.  278. 


90  GENERAL   AVERAGE    AND   MARINE    INSURANCE        (Ch.  3 

can  law.  For  instance,  where  a  vessel  owner  desires  to 
claim  the  benefit  of  the  Limited  Liability  Act  and  surren- 
ders his  vessel  for  the  benefit  of  her  creditors,  the  right  of 
action  against  a  third  party  for  the  damage  goes  with  it.3r' 

In  another  respect  the  American  and  English  decisions 
diverge  as  to  the  effect  of  a  valuation  in  a  policy. 

In  a  salvage  case,  the  salvage  award  is  apportioned  be- 
tween vessel  and  cargo  according  to  values,  which  are 
passed  upon  by  the  court  as  one  of  the  facts  in  the  case. 
As  the  salvors  look  to  the  properties  salved,  they  are  not 
bound  by  or  concerned  with  any  valuation  that  may  be 
agreed  upon  between  owners  and  insurers  in  a  policy.  Now 
suppose  that  in  a  proceeding  to  recover  salvage  the  court 
finds  as  a  fact  that  the  ship  is  worth  $100,000  and  the  cargo 
$50,000;  and  that  an  award  of  $30,000  is  made  on  such  valu- 
ations. The  vessel  would  be  liable  to  the  salvors  for  $20,- 
000  of  this,  and  the  cargo  for  $10,000. 

Now  suppose  that  the  owner  has  insured  his  ship  on  a 
valuation  of  $75,000.  If  this  value  were  taken  in  distribut- 
ing the  salvage  award,  the  proportionate  share  of  the  ship 
would  be  $18,000  and  of  the  cargo  $12,000.  As  salvage  is 
a  peril  of  the  sea,  there  is  no  question  of  the  insurer's  ob- 
ligation to  refund  one  of  these  two  sums  to  the  owner. 

In  America  it  is  held  that  the  insurer  must  refund  to  the 
insured  the  amount  charged  against  the  ship  in  the  court 
proceeding,  regardless  of  the  method  of  arriving  at  the 
values  which  the  court  may  adopt,  provided  the  total 
amount  recovered  on  the  policy  is  within  the  policy  limit; 
that  the  other  rule  would  make  the  owner  a  constructive 
insurer  of  the  excess  of  value  over  the  policy  valuation  and 
result  in  holding  him  to  the  policy  valuation  while  not  hold- 
ing the  insurer  to  it.30 

so  Post,  §  1G9,  p.  369. 

86  International  Nav.  Co.  v.  British  &  Foreign  Marine  Ins.  Co. 
(D.  C.)  100  Fed.  304.  The  decision  was  in  190©,  by  Judge  Addison 
Drown  of  New  York.  • 


§  40)  THE   LOSS  91 

•  On  the  other  hand,  the  English  courts  hold  that  the  lia- 
bility of  the  insurer  must  be  settled  by  the  terms  of  the 
contract  between  him  and  his  insured,  that  he  is  liable  only 
for  that  part  of  the  salvage  represented  by  the  valuation 
named  in  such  contract,  and  that  to  make  him  pay  the  en- 
tire amount  would  be  to  let  the  insured  collect  out  of  his 
policy  on  an  interest  which  he,  the  insured,  had  purpose- 
ly left  uncovered  and  on  which  he  had  paid  no  premium.37 

SAME— SUBROGATION  OF  INSURER 

40.  An  insurer  who  has  paid  the  insurance  is  subrogated  to 
the  rights  of  the  insured  against  others  liable  to 
the  insured  for  the  loss. 

The  insured  is  entitled  to  recover  his  loss  from  the  un- 
derwriter, though  he  may  possess  other  remedies  for  it. 
For  instance,  if  he  can  recover  back  part  of  the  loss  in  gen- 
eral average,  the  underwriter  must  still  pay  him,  and  look 
to  the  collection  of  the  average  himself,  and  not  force  the 
insured  to  exhaust  his  remedies  on  general  average.38 

But,  when  the  underwriter  has  paid  the  loss,  he  is  en- 
titled by  subrogation  to  all  the  rights  of  the  insured  against 
any  other  parties  for  the  recovery  of  all  or  part  of  what  he 
has  paid.  In  such  case,  he  stands  in  the  shoes  of  the  as- 
sured, and  has  no  greater  rights  than  the  assured  himself 
would  have,  so  that  if  the  assured  has  stipulated  away  his 
right  by  any  enforceable  clause  in  a  bill  of  lading  or  other- 
wise, the  underwriter  cannot  recover.    This  right  of  subro- 

3  7  Balmoral  S.  S.  Co.  v.  Marten,  [1900]  2  Q.  B.  74S ;  [1901]  2  K. 
B.  S96 ;  [1902]  A.  C.  511.  It  is  noteworthy  that  the  English  judges  all 
agreed,  including  Bigham  in  the  trial  court,  A.  L.  Smith,  Vaughan, 
and  Stirling  in  the  Court  of  Appeal,  and  Lords  Maenaghten,  Shand, 
Brampton,  Robertson,  and  Lindley  in  the  House  of  Lords.  To  the 
author  the  argument  seems  all  in  favor  of  their  view. 

§  40.  3  8  International  Nav.  Co.  v.  British  &  Foreign  Marine  Ins. 
Co.  (D.  C.)  100  Fed.  304. 


92  GENERAL   AVERAGE   AND   MARINE    INSURANCE       (Ch.  3 

gation  springs,  not  necessarily  from  assignment,  but  from 
the  general  principles  of  equity.39 

SAME— SUING  AND    LABORING    CLAUSE 

41.  In  addition  to  the  amount  of  his  loss,  the  insured  may 
recover,  under  the  suing  and  laboring  clause  of  the 
policy,  expenses  incurred  by  him  in  protecting  the 
property. 

In  the  old  English  policy  this  clause  was  in  the  following 
language:  "And  in  case  of  any  loss  or  misfortune  it  shall 
be  lawful  to  the  assured,  their  factors,  servants,  and  assigns, 
to  sue,  labor  and  travel  for,  in,  and  about  the  defense,  safe- 
guard, and  recovery  of  the  said  goods  and  merchandise,  and 
ship,"  etc.,  "or  any  part  thereof,  without  prejudice  to  this  in- 
surance." 

In  later  policies  the  clause  has  been  modified  largely  in 
the  interests  of  the  underwriter,  but  the  general  language 
is  the  same.  This  clause  is  intended,  in  mutual  interest, 
to  encourage  the  assured  to  do  everything  towards  making 
the  loss  as  light  as  possible ;  and  the  expenses  thereby  in- 
curred are  recoverable  outside  of  the  other  clauses  of  the 
policy,  though  in  some  instances  it  enables  the  assured  to 
recover  more  than  the  face  value  of  the  policy.  In  other 
words,  the  assured  may  recover  a  certain  amount  under 
that  clause  of  the  policy  giving  him  the  right  to  recover  for 
loss  caused  by  the  perils  of  the  sea,  etc.,  and  this  additional 
amount  as  expended  for  the  general  benefit,  and  this,  too,, 
often   in  policies   insuring  against  total   loss  only.     And, 

8»  See,  as  illustrating  the  extent  of  this  doctrine,  Liverpool  &  G. 
W.  Steam  Co.  v.  I'henix  Ins.  Co.,  129  U.  S.  397,  9  Sup.  Ct.  469,  32  L, 
Ed.  788;  Mobile  &  M.  Ry.  Co.  v.  Jurey,  111  U.  S.  584,  4  Sup.  Ct.  5G6, 
2S  L.  Ed.  527;  Wager  v.  Providence  Ins.  Co.,  150  U.  S.  99,  14  Sup. 
Ct  55,  37  L.  Ed.  L013;  Fairgrleve  v.  Marine  Ins.  Co.,  37  C.  C.  A. 
L90,  94  Fed.  686;  Hall  v.  Nashville  &  C.  R.  Co.,  13  Wall.  307.  20  I* 
Ed.  594. 


§  41)  THE   LOSS  93 

since  an  abandonment  under  the  American  decisions  relates 
back,  the  underwriters  are  liable  for  the  acts  of  the  master 
after  abandonment,  as  he  is  then  their  agent.40 

The  acts  of  the  insurer  or  the  underwriter,  in  sending 
and  making  efforts  to  save,  cannot  be  construed  as  an  ac- 
ceptance of  the  abandonment.41 

The  clause  does  not  cover  legal  expenses  incurred  in  de- 
fending the  ship  against  an  unsuccessful  attempt  to  hold  her 
liable  for  damages  in  the  collision  out  of  which  the  loss 
arose.42 

This  clause,  however,  only  covers  such  acts  of  the  under- 
writer as  are  authorized  by  the  policy.  If  the  underwriter 
takes  the  vessel  to  repair  her,  intending  to  return  her,  and 
keeps  her  an  unreasonable  time,  and  then  returns  her,  not 
in  as  good  condition  as  she  was  before,  the  suing  and  labor- 
ing clause  will  not  protect  him,  and  his  acts  in  so  doing, 
being  unauthorized  by  the  suing  and  laboring  clause,  will 
be  held  an  acceptance  of  the  notice  of  abandonment.43 

§  41.     40  Gilchrist  v.  Chicago  Ins.  Co.,  104  Fed.  566,  44  C.  C.  A.  43. 
4i  RICHELIEU  &  O.  NAV.  CO.   v.   BOSTON  MARINE  INS.  CO., 
136  U.  S.  408,  10  Sup.  Ct.  934,  34  L.  Ed.  398. 

42  Munson  v.  Standard  Marine  Ins.  Co.,  156  Fed.  44,  84  C.  C.  A. 
210. 

43  Washburn  &  M.  Mfg.  Co.  v.  Reliance  M.  Ins.  Co.,  179  U.  S.  1, 
21  Sup.  Ct.  1,  45  L.  Ed.  49 ;  Copelin  v.  Phcenix  Ins.  Co.,  9  Wall.  461, 
19  L.  Ed.  739. 


94  BOTTOMRY  AND   RESPONDENTIA  (Ch.  4 


CHAPTER  IV 

OF  BOTTOMRY  AND  RESPONDENTIA ;    AND  LIENS  FOR  SUP- 
PLIES, REPAIRS,  AND  OTHER  NECESSARIES 

42.  "Bottomry"  Defined. 

43.  Requisites  of  Bottomry  Bond. 

44.  Respondentia. 

45.  Supplies,  Repairs,  and  Other  Necessaries. 

46.  "Material  Man"  Defined. 

47.  Necessaries  Furnished  in  Foreign  Ports. 

48.  "Necessaries"  Defined. 

49.  Necessaries  Furnished  Domestic  Vessels. 

50.  Domestic  Liens  as  Affected  by  Owner's  Presence. 

51.  Shipbuilding  Contracts. 

52.  Vessels  Affected  by  State  Statutes. 


"BOTTOMRY"  DEFINED 

42.  This  is  an  obligation  executed  generally  in  a  foreign 
port  by  the  master  of  a  vessel  for  repayment  of 
advances  to  supply  the  necessities  of  the  ship,  to- 
gether with  such  interest  as  may  be  agreed  upon, 
which  bond  creates  a  lien  on  the  ship  enforceable 
in  admiralty  in  case  of  her  safe  arrival  at  the  port 
of  destination,  but  becoming  absolutely  void  and 
of  no  effect  in  case  of  her  loss  before  arrival.1 

This  is  an  express  lien  created  by  act  of  the  parties. 

The  Admiralty  Lien 

Admiralty  is  not  a  difficult  branch  of  the  law,  and  the 
difficulties  of  this  part  arise  not  inherently,  but  from  the 
confusion  incident  to  the  use  of  the  word  "lien."  To  the 
student  of  the  common  law  its  use  suggests  the  ideas  which 
our  studies  in  that  branch  associate  with  it;   and,  even  if 

§    12.     i  GRAPESHOT,  9  Wall.  129,  10  L.  Ed.  G51. 


§  42)  "bottomry"  defined  95 

there  was  such  a  production  in  those  modern  specialist 
times  as  an  admiralty  lawyer  ignorant  of  all  other  law,  the 
confusion  would  still  exist  to  a  lesser  extent,  since  the 
word  is  used  in  different  senses  in  marine  law  itself. 

The  admiralty  lien,  pure  and  simple,  is  strikingly  dis- 
similar from  the  common-law  lien.  Take  a  common-law 
mortgage  as  an  illustration.  There  the  title  to  the  security 
is  conditionally  conveyed  to  the  creditor  and  he  has  a  prop- 
erty interest  in  it.  Take,  on  the  other  hand,  the  hotel  keep- 
er who  retains  the  trunks  of  his  guests  till  they  pay  for 
their  wine.  The  moment  he  relinquishes  possession  of  the 
trunks  he  loses  his  security,  for  his  lien  depends  on  posses- 
sion. In  other  words,  the  common-law  liens  give  the  cred- 
itor a  qualified  title  or  right  of  possession  as  security  for 
a  personal  debt  due  by  the  owner  and  as  incident  to  such 
a  debt. 

The  admiralty  lien  is  different.  Its  holder  has  no  right 
of  possession  in  the  ship.  It  exists  as  a  demand  against 
the  ship  itself  as  a  contracting  or  wrongdoing  thing,  ir- 
respective of  the  fact  whether  the  creditor  has  any  person- 
al action  against  the  owner  or  not.  It  is  not  a  mere  inci- 
dent to  a  debt  against  the  owner,  but  a  right  of  action 
against  the  thing  itself — a  right  to  proceed  in  rem  against 
the  ship  by  name,  in  which  the  owner  is  ignored,  may  nev- 
er appear,  and  appears,  if  at  all,  not  as  defendant,  but  as 
claimant.  It  is  nearer  what  the  civil  law  terms  a  "hypothe- 
cation"— a  privilege  to  take  and  sell  by  judicial  proceedings 
in  order  to  satisfy  your  demand.  This  shows  how  little  it 
has  in  common  with  the  common-law  lien.2 

As  said  above,  there  are  liens  in  admiralty  law  enforcea- 
ble by  admiralty  process  which  yet  are  not  admiralty  liens 
in  the  above  sense.  Such  is  the  lien  of  the  ship  on  the  car- 
go for  freight  and  demurrage,  which  is  lost  by  delivery.  It 
is  to  be  regretted  that  the  term  was  not  limited  to  such  cas- 

2  Pleroma  (D.  C.)  175  Fed.  639 ;    Mayer's  Admiralty  Jur.  &  Pr.  55. 


96  BOTTOMRY   AND    RESPONDENTIA  (Ch.  4 

es,  and  some  better  expression,  such  as  a  privilege  or  right 
of  arrest,  substituted  in  the  others. 

The  lien  by  bottomry  is  a  good  instance  of  maritime  hy- 
pothecation. It  is  a  debt  of  the  ship,  arises  out  of  the  ne- 
cessities of  the  ship,  and  is  good  only  against  the  ship.  If 
the  ship  meets  with  a  marine  disaster,  and  seeks  shelter  and 
restoration  in  a  port  where  she  and  her  owners  are  stran- 
gers without  credit,  her  master  may  borrow  money  for  the 
purpose  of  refitment,  and  secure  it  by  a  bond  pledging  the 
vessel  for  its  payment,  on  arrival  at  her  destination.  As  the 
bond  provides  that  it  shall  be  void  in  case  she  does  not  ar- 
rive, the  principal  is  at  risk,  and  therefore  a  high  rate  of  in- 
terest may  be  charged  without  violating  the  usury  laws.3 

The  loss  which  avoids  a  bottomry  bond  is  an  actual  total 
loss.  The  doctrine  of  constructive  total  loss  is  found  only 
in  the  law  of  marine  insurance,  and  does  not  apply  in  con- 
sidering the  law  of  bottomry.4 

REQUISITES  OF  BOTTOMRY  BOND 

43.  The  requisites  for  the  validity  of  a  bottomry  bond  are 
that  the  repairs  or  supplies  must  be  necessary,  and 
that  the  master  or  owner  has  no  apparent  funds  or 
credit  available  in  the  port. 

But,  if  the  lender  satisfies  himself  that  the  supplies  are 
necessary,  he  may,  in  the  absence  of  knowledge,  actual  or 
constructive,  as  to  the  existence  of  funds  or  credit,  presume, 
from  the  fact  that  the  master  orders  them,  that  there  is  a 
necessity  for  the  loan,  and  his  lien  will  be  upheld,  in  the  ab- 
sence of  bad  faith. 

It  is  the  duty  of  the  master  to  communicate  with  the 
owner  of  the  ship  or  cargo  proposed  to  be  bottomried  if 

s  Northern  Lisht  (D.  C.)  106  Fed.  748. 

*  Delaware  Mut.  Safety  Ins.  Co.  v.  (Jossler,  96  U.  S.  645,  24  L.  Ed. 
863 ;   Great  Pacific,  L.  R.  2  P.  C.  516. 


§   44)  RESPONDENTIA  97 

he  can.5  The  modern  facilities  for  communication  and 
ease  of  transferring  funds  from  port  to  port  have  rendered 
bottomry  bonds  less  common  than  in  former  times.  In 
America  the  right  to  bind  a  vessel  for  repairs  and  supplies 
as  a  maritime  contract  without  any  bottomry  renders  them 
rarely  needed. 

The  holder  of  a  bottomry  bond  must  enforce  it  promptly 
after  the  arrival  of  the  ship,  or  he  will  be  postponed  to  any 
subsequently  vested  interests.6 

Among  different  bottomry  bonds  the  last  is  paid  first. 
This  is  another  sharp  distinction  between  admiralty  and 
common-law  liens.  Among  admiralty  liens  of  the  same 
general  character,  the  last  takes  precedence ;  the  theory  be- 
ing that  the  last  is  for  the  benefit  of  the  preceding  ones,  and 
contributes  to  saving  the  ship  in  the  best  possible  condition 
for  all  concerned.7 

The  case  of  O'Brien  v.  Miller  8  contains  a  form  of  bot- 
tomry bond  printed  in  full. 

RESPONDENTIA 

44.  This  is  a  hypothecation  of  cargo,  similar  in  nature, 
purposes,  requisites,  and  effect  to  the  hypotheca- 
tion of  the  vessel  by  bottomry. 

A  bottomry  bond  may  hypothecate  not  only  the  vessel 
but  the  cargo.  If  it  is  on  the  cargo  alone  it  is  called  a  "re- 
spondentia bond."  Since  the  master  has  greater  powers  as 
agent  of  the  vessel  owner  than  he  has  as  agent  of  the  car- 
go owner,  it  requires  a  stronger  necessity  and  a  stronger 
effort  to  communicate  with  the  cargo  owner  in  order  to 

§  43.     «  Karnak,  L.  R.2A.&  E.  289 ;    Id.,  2  P.  C.  505. 

e  Charles  Carter,  4  Cranch,  328,  2  L.  Ed.  636. 

i  Omer,  2  Hughes,  96,  Fed.  Cas.  No.  10,510. 

s  168  U.  S.  287,  18  Sup.  Ct.  140,  42  L.  Ed.  469.     The  following  cases 
are   interesting   and    typical:     Virgin,    8   Pet.   554,    8   L.    Ed.    1036; 
GRAPESHOT,  9  Wall.  129,  19  L.  Ed.  651. 
Hughes, Adm.  (2d  Ed.) — 7 


98  BOTTOMRY  AND   RESPONDENTIA  (Ch.  4 

sustain  a  respondentia  bond  than  to  sustain  a  bottomry.9 
In  other  respects  the  law  as  to  the  two  is  similar.  Admi- 
ralty courts  have  cognizance  of  suits  to  enforce  these 
bonds.1* 


SUPPLIES,  REPAIRS,  AND  OTHER  NECESSARIES 

45.  The  lien  of  materialmen   for   supplies   and  repairs  or 

other  necessaries  is  an  instance  of  implied  hypothe- 
cation, similar  to  the  bottomry  lien  for  moneys 
advanced  with  the  same  object,  the  latter  being  an 
express  hypothecation. 

46.  "MATERIALMAN"     DEFINED— A   materialman    is 

one  whose  trade  it  is  to  repair  or  equip  ships,  or 
furnish  them  with  tackle  and  necessary  provi- 
sions.11 

Under  the  general  admiralty  law  as  expounded  by  the 
Supreme  Court,  the  materialman  who  furnished  neces- 
saries to  a  vessel  in  a  foreign  port  on  the  order  of  her  mas- 
ter was  presumed  to  credit  the  vessel,  though  nothing  was 
said  on  the  subject;  and  he  could  therefore  proceed  against 
the  vessel.  The  reason  was  the  apparent  necessity  for 
credit  in  the  absence  of  her  owner,  in  order  to  enable  the 
vessel  to  carry  out  the  objects  of  her  creation.  As  Mr. 
Justice  Johnson  expressed  it  in  the  St.  Jago  de  Cuba,12  it 
was  to  furnish  wings  and  legs  to  the  vessel  to  enable  her 
to  complete  her  voyage. 

For  the  same  reason,  necessaries  furnished  a  domestic 
vessel  gave  no  claim  against  the  vessel,  but  could  be  as- 
serted simply  against  the  owner;  for  in  such  case  the  ne- 
cessity for  the  credit  ceased,  and  the  presumption  would 
be  that  the  credit  was  given  to  him. 

§  44.  o  JULIA  BLAKE,  107  U.  S.  418,  2  Sup.  Ct.  092,  27  L.  Ed. 
595. 

io  Admiralty  rule  18  (29  Sup.  Ct.  xl). 
§§  45-40.     ii  Neptune,  3  Bagg.  Ad.  1  12. 
129  Wheat.  410,  •;  L.  Ed.  122. 


§§  45-46)      SUPPLIES,  REPAIRS,  ATST>  OTHER  NECESSARIES  99 

The  distinction  between  these  two  classes  was  the  re- 
sult of  an  early  decision  of  the  court,  from  which  it  has 
never  felt  at  liberty  to  depart.13 

The  opinion  in  that  case  was  but  a  page  in  length  and 
announced  the  distinction  without  any  discussion  or  re- 
view of  authorities. 

In  the  Lottawanna14  a  vigorous  attack  was  made  upon 
it,  but  the  court  followed  it  in  spite  of  the  unanswerable 
dissenting  opinion  of  Mr.  Justice  Clifford,  which  demon- 
strated that  the  distinction  between  foreign  and  domestic 
vessels  had  no  place  in  the  sources  of  the  maritime  law 
from  which  the  grant  of  admiralty  jurisdiction  in  our  Con- 
stitution was  drawn. 

Soon  after  the  organization  of  the  Maritime  Law  Asso- 
ciation, which  includes  many  of  the  leading  specialists  in 
admiralty  law,  the  subject  of  restoring  the  law  by  congres- 
sional action  to  its  ancient  uniformity  in  this  respect  was 
taken  up,  and  a  committee  was  appointed  to  draft  such  an 
act  and  submit  it  to  the  Association.  It  was  before  the  As- 
sociation for  several  years,  was  the  subject  of  much  con- 
sideration, and  was  redrafted  many  times,  during  which 
the  committee  underwent  many  changes.  At  last  it  assum- 
ed a  shape  which  was  acceptable  to  the  Association,  and 
Congress  gave  it  the  force  of  law  by  Act  June  23,  1910.15 

The  act  is  as  follows : 

"An  Act  Relating  to  Liens  on  Vessels  for  Repairs,  Sup- 
plies, or  Other  Necessaries. 

"Be  it  enacted  by  the  Senate  and  House  of  Representatives 
of  the  United  States  of  America  in  Congress  assembled,  that 

is  General  Smith.  4  Wheat.  438.  4  L.  Ed.  609  (1819). 

i4  21  Wall.  558,  22  L.  Ed.  654  (1874). 

is  36  Stat.  604  (U.  S.  Conrp.  St.  §§  77S3-7787).  The  Committee  of 
the  Association  which  gave  the  act  its  final  shape  was  composed  of 
Mr.  Frederic  Dodge,  of  Boston.  Mr.  FitzHenry  Smith,  Jr.,  of  Bos- 
ton, and  the  author.  Mr.  Dodge  has  since  been  elevated  to  the 
bench. 


100  BOTTOMRY   AND    RESPONDENTIA  (Ch.  4 

any  person  furnishing  repairs,  supplies,  or  other  neces- 
saries, including  the  use  of  dry  dock  or  marine  railway  to  a 
vessel,  whether  foreign  or  domestic,  upon  the  order  of  the 
owner  or  owners  of  such  vessel,  or  of  a  person  by  him  or 
them  authorized,  shall  have  a  maritime  lien  on  the  vessel 
which  may  be  enforced  by  a  proceeding  in  rem,  and  it  shall 
not  be  necessary  to  prove  that  credit  was  given  to  the  ves- 
sel. 

"Sec.  2.  That  the  following  persons  shall  be  presumed 
to  have  authority  from  the  owner  or  owners  to  procure 
repairs,  supplies  and  other  necessaries  for  the  vessel:  The 
managing  owner,  ship's  husband,  master,  or  any  person  to 
whom  the  management  of  the  vessel  at  the  port  of  supply 
is  intrusted.  No  person  tortiously  or  unlawfully  in  pos- 
session or  charge  of  a  vessel  shall  have  authority  to  bind 
the  vessel. 

"Sec.  3.  That  the  officers  and  agents  of  a  vessel  specified 
in  section  two  shall  be  taken  to  include  such  officers  and 
agents  when  appointed  by  a  charterer,  by  an  owner  pro 
hac  vice,  or  by  an  agreed  purchaser  in  possession  of  the 
vessel,  but  nothing  in  this  act  shall  be  construed  to  confer 
a  lien  when  the  furnisher  knew,  or  by  the  exercise  of  rea- 
sonable diligence  could  have  ascertained,  that  because  of 
the  terms  of  a  charter  party,  agreement  for  sale  of  the  ves- 
sel, or  for  any  other  reason,  the  person  ordering  the  repairs, 
supplies,  or  other  necessaries  was  without  authority  to  bind 
the  vessel  therefor. 

"Sec.  4.  That  nothing  in  this  act  shall  be  construed  to 
prevent  a  furnisher  of  repairs,  supplies,  or  other  necessaries 
from  waiving  his  right  to  a  lien  at  any  time,  by  agreement 
or  otherwise,  and  this  act  shall  not  be  construed  to  affect 
the  rules  of  law  now  existing,  either  in  regard  to  the  right 
to  proceed  against  a  vessel  for  advances,  or  in  regard  to 
laches  in  the  enforcement  of  liens  on  vessels,  or  in  regard 
to  the  priority  or  rank  of  liens,  or  in  regard  to  the  right  to 
proceed  in  personam. 


§  47)  SUPPLIES,  REPAIRS,  AND  OTHER  NECESSARIES  101 

"Sec.  5.  That  this  act  shall  supersede  the  provisions  of 
all  state  statutes  conferring  liens  on  vessels  in  so  far  as 
the  same  purport  to  create  rights  of  action  to  be  enforced 
by  proceedings  in  rem  against  vessels  for  repairs,  supplies, 
and  other  necessaries." 

The  purpose  of  the  act  was  to  abolish  the  artificial  dis- 
tinction between  foreign  and  domestic  vessels  as  to  the 
presumption  of  credit.  In  other  respects  it  is  substantially 
a  reaffirmation  of  previous  law.  It  renders  obsolete  many 
decisions  turning  upon  the  prior  law  as  to  the  presumption 
of  credit.  But  it  cannot  be  understood  without  some 
knowledge  of  previous  law,  and  of  course  is  subject  to  re- 
peal at  any  time;  so  that  it  is  necessary  to  give  some  at- 
tention to  the  previous  law,  taking  care  to  point  out  how 
it  has  been  affected  by  the  act. 

It  is  proper  to  consider,  then:  (1)  Necessaries  furnished 
in  foreign  ports ;  (2)  necessaries  furnished  in  domestic 
ports. 

SAME— NECESSARIES  FURNISHED  IN  FOREIGN 

PORTS, 

47.  For  supplies  furnished  a  foreign  vessel  on  the  order  of 
the  master  in  the  absence  of  the  owner  the  law 
implied  a  lien.  But  prior  to  the  act  the  presump- 
tion was  against  a  lien  if  ordered  by  the  owner  or 
by  the  master  when  the  owner  was  in  the  port. 

As  the  master  in  a  proper  case  could  bind  the  vessel  for 
such  necessaries  by  means  of  a  bottomry  bond,  so  he  could 
contract  direct  with  the  materialmen.  By  so  using  his  ship 
as  a  basis  of  credit,  he  saved  the  marine  interest  usually 
charged  in  such  bonds.  The  test  of  his  power  was  the 
needs  of  his  vessel.  He  could  not  do  this  unless  the  neces- 
sity was  shown  for  the  supplies  or  repairs,  but  when  that 
was  shown  the  rest  was  presumed.  The  materialman  could 
then  assume  from  the  necessity  of  the  repairs,  and  the  fact 


102  BOTTOMRY   AND    RESPONDENTIA  (Ch.  4 

that  the  master  ordered  them,  that  a  necessity  existed  for 
the  credit,  though  in  point  of  fact  the  master  had  funds 
which  he  might  have  used.  Only  knowledge  of  this  fact 
or  willful  shutting  of  the  eyes  to  avoid  knowledge  would 
defeat  the  materialman's  claim.16 

As  the  basis  of  this  implied  hypothecation  was  the  pow- 
er of  the  master  as  agent  of  the  owner  in  the  latter's  ab- 
sence, the  presence  of  the  owner  defeated  the  master's  im- 
plied power,  and  in  such  case  the  presumption  in  the  ab- 
sence of  other  evidence  of  intent  was  that  credit  was  given 
to  the  owner.17 

But  in  such  case  the  owner  himself  could  bind  the  vessel 
by  agreeing  that  the  materialman  might  look  to  the  vessel  ; 
and,  indeed,  if  it  appeared  that  the  owner  had  no  credit  or 
was  embarrassed  or  insolvent,  the  presumption  would  be 
that  the  credit  was  given  to  the  vessel,  and  not  to  him.18 

The  fact  that  the  supplies  are  charged  to  the  vessel  by 
name  on  the  creditor's  books  was  regarded  as  evidence  of 
an  intent  to  credit  the  vessel,  though  not  very  strong  evi- 
dence, as  such  entries  are  self-serving.19 

But  these  distinctions  are  wiped  out  by  the  first  section 
of  the  act,  which  gives  a  maritime  lien  on  the  furnishing  of 
the  service,  regardless  of  the  question  as  to  whom  credit 
was  given.20 

The  second  section  of  the  act  enumerates  the  persons 
who  are  presumed  to  have  authority  to  bind  the  ship ;   that 

§  47.  isKALORAMA,  10  Wall.  204,  19  L.  Ed.  914;  Underwriter 
(D.  C.)  119  Fed.  713  (an  invaluable  opinion  by  Judge  Lowell  dis- 
cussing  the  history  and  development  of  the  doctrine). 

J  ■  VALENCIA,  165  U.  S.  270,  271,  17  Sup.  Ct.  323,  41  L.  Ed.  710 ; 
Reed  Bros.  Dredge  No.  1  (D.  C.)  135  Fed.  867. 

isKALORAMA,  10  Wall.  204.  19  L.  Ed.  944;  Patapsco,  13  Wall. 
329,  20  L.  Ed.  696;  Worthington,  133  Fed.  725,  66  C.  C.  A.  5:1.1.  70 
L.  R.  A.  353. 

i»  Mary  Bell,  1  Sawy.  13.1,  Fed.  Cas.  No.  9,199:  Samuel  Marshall, 
.11  Fed,  396,  4  C.  C.  A.  3S5;    Ella  (D.  C.)  84  Fed.  471. 

20  City  of  Milford  (D.  C.)  199  Fed.  0.10  fan  excellent  discussion  of 
the  pnn>ose  of  the  act  by  Judg  i  Rose). 


§  47)  SUPPLIES,  REPAIRS,  AND  OTHER  NECESSARIES  103 

is,  those  who  may  be  supposed  by  third  parties  to  be  au- 
thorized to  deal  with  them.  This  is  not  intended  as  exclu- 
sive. Others  may  have  such  power,  either  from  previous 
course  of  dealing  or  other  circumstances,  such  as  are  usu- 
ally matters  of  proof  when  a  question  of  agency  is  involved. 
But  in  the  latter  case  the  party  who  attempts  to  hold  the 
ship  must  prove  their  authority,  while  as  to  those  named 
in  this  section  their  authority  is  presumed. 

The  concluding  sentence  of  the  second  section,  denying 
the  right  of  any  one  in  tortious  possession  to  bind  the  ves- 
sel was  intended  to  settle  a  question  as  to  which  there  had 
been  some  difference.21 

Suppose  the  vessel  is  chartered — that  is,  hired  by  the 
owner  to  some  one  else  to  operate  her — under  an  agree- 
ment that  the  charterer  is  to  furnish  all  running  supplies 
and  the  owner  is  to  furnish  the  crew.  In  that  case  the  ma- 
terialman could  not  proceed  against  the  vessel  for  such 
supplies  furnished,  even  on  the  order  of  the  master,  if  the 
materialman  knew  or  could  have  ascertained  that  the  char- 
terer's power  was  so  limited.22  And  this  is  true  as  to  a 
vendee  in  possession  under  a  sale,  where  the  vendor  retains 
title  till  payment.  He  could  not  bind  the  vessel  under  such 
circumstances.23 

Even  in  case  of  chartered  vessels,  if  the  supplies  were 
ordered  in  a  foreign  port  by  the  master,  the  vessel  would  be 
bound,  unless  the  materialman  knew  or  could  have  ascer- 
tained the  limitations  of  the  charter  party.24 

21  See  the  article  by  Mr.  Frederic  Cunningham  on  "Respondeat  Su- 
perior in  Admiralty,"  19  Harvard  Law  Review,  at  page  446.  See, 
also,  Jackson  v.  Julia  Smith,  Fed.  Cas.  No.  7,136;  Thurber  v.  Fan- 
nie, Fed.  Cas.  No.  14,014;  Anne,  Fed.  Cas.  No.  412  (Story,  J.);  G. 
H.  Starbuck,  Fed.  Cas.  No.  5,37S;  Dias  v.  Revenge,  Fed.  Cas.  No. 
3,877;    Clarita,  23  Wall.  11,  23  L.  Ed.  146. 

22  Kate,  164  U.  S.  458,  17  Sup.  Ct.  135.  41  L.  Ed.  512;  VALENCIA, 
165  U.  S.  264,  17  Sup.  Ct.  323,  41  L.  Ed.  710. 

23  H.  C.  Grady  (D.  C.)  87  Fed.  232. 

24  O.  H.  Vessels  (D.  C.)  177  Fed.  589;  Id.,  183  Fed.  561,  106  C.  C. 
A.  107. 


104  BOTTOMRY   AND   RESPONDENTIA  (Ch.  4 

The  third  section  of  the  act  substantially  adopts  the  pre- 
existing law  on  the  subject,  except  perhaps  that  it  rather 
extends  the  powers  of  a  purchaser  in  possession. 

It  does  not  impose  upon  the  materialman  the  duty  of  in- 
augurating any  inquiry  or  search  of  records.  In  the  ab- 
sence of  anything  to  put  him  on  inquiry,  he  may  assume 
that  the  officers  or  agents  usually  empowered  to  act  for 
ships  have  such  powers.25 

The  existence  of  a  charter  party  and  knowledge  of  that 
fact  by  the  materialman  do  not  necessarily  defeat  the  lien. 
The  owner  may  estop  himself  to  deny  it  by  his  conduct,  or 
the  charter  party  may  not  forbid  the  incurring  of  a  lien.26 

By  "foreign  port"  was  meant  not  simply  ports  of  for- 
eign countries,  but  in  this  respect  the  states  also  are  for- 
eign to  each  other.  The  character  of  the  vessel  is  pre- 
sumptively determined  by  her  port  of  registry,  so  that,  if 
a  vessel  registered  in  New  York  goes  to  Jersey  City,  she 
was  in  a  foreign  port  for  the  purposes  of  this  doctrine.27 

This  was  only  a  presumption,  and  could  be  overcome  by 
showing  the  real  residence  of  the  owner.  Hence,  if  a  ves- 
sel, though  registered  in  New  York,  had  an  owner  living 
in  Norfolk,  and  the  supply  man  knew  this,  or  was  put  upon 
inquiry,  supplies  ordered  in  Norfolk  would  be  treated  as 
ordered  in  the  home  port.  And  this  was  true  also  as  to  a 
charterer  operating  a  ship  under  a  charter  that  amounted 
to  a  demise.28 

25  City  of  Milford  (D.  C.)  199  Fed.  956;  Eureka  (D.  C)  209  Fed. 
373;  Oceana  (D.  C.)  233  Fed.  139;  Id.,  244  Fed.  80,  156  C.  C.  A. 
508. 

26  Mt.  Desert,  158  Fed.  217;  Id.,  175  Fed.  747,  99  C.  C.  A.  323 
(decided  before  the  act);  South  Coast  (I).  C.)  233  Fed.  327;  Id.,  247 
Fed.  84,  159  C.  C.  A.  302 ;  Id.,  251  U.  S.  — ,  40  Sup.  Ct,  233,  64  L. 
].;,!    ;   New  York  Trust  Co.  v.  Bermuda-Atlantic  S.  S.  Co.  (D.  C.) 

211  Fed.  988. 

27  KALORAMA,  10  Wall.  210-212,  19  L.  Ed.  944. 

28  Ellen  Holgate  (D.  C.j  :•.<>  Fed.  125;  Francis  (D.  C.)  21  Fed.  715; 
Samuel  Marshall,  54  Fed.  396,  4  C.  C.  A.  385. 


§  47)  SUPPLIES,  REPAIRS,  AND  OTHER  NECESSARIES  105 

Under  the  act  the  distinction  between  foreign  and  domes- 
tic vessels  has  lost  its  importance. 

These  claims,  being  maritime  in  their  nature,  take  prec- 
edence of  common-law  liens.  Hence,  though  not  required 
by  any  law  to  be  recorded,  they  take  precedence  of  a  prior 
recorded  mortgage,  on  the  maritime  theory  that,  being  in- 
tended to  keep  the  ship  going,  they  are  for  the  benefit  of 
other  liens,  as  tending  to  the  preservation  of  the  res.29 

How  Waived  or  Lost 

Taking  a  note  or  acceptance  for  a  claim  of  this  sort  is 
not  a  novation  or  waiver  of  the  right  to  hold  the  vessel, 
unless  so  understood.30 

Such  a  claim  is  lost  under  some  circumstances  by  delay 
in  enforcing  it.  In  such  cases  it  becomes  "stale,"  to  use 
the  language  of  the  admiralty  judges.  In  its  general  prin- 
ciples the  doctrine  of  staleness  is  substantially  the  same  as 
the  equitable  doctrine  of  the  same  name.  In  its  application 
admiralty  is  perhaps  prompter  in  enforcing  it. 

As  between  the  original  parties,  the  claim  would  hold  by 
analogy  until  a  personal  suit  of  the  same  nature  would  be 
barred  by  the  act  of  limitations,  in  the  absence  of  special 
circumstances,  such  as  loss  of  evidence  or  changed  condi- 
tion of  parties.  But,  where  other  interests  have  been  ac- 
quired in  ignorance  of  its  existence,  it  would  be  held  stale 
in  a  much  shorter  period,  depending  on  the  frequency  of 
opportunities  for  enforcing  it.31 

Illustrations  of  such  interests  would  be  an  innocent  pur- 
chaser for  value  or  a  subsequent  supply  claim.    A  holder  of 

20  Emily  B.  Souder,  17  Wall.  666,  21  L.  Ed.  6S3 ;  J.  E.  RUMBELL, 
148  U.  S.  1,  13  Sup.  Ct.  40S,  37  L.  Ed.  345. 

so  Emily  B.  Souder,  17  Wall.  6G6,  21  L.  Ed.  6S3. 

si  SARAH  ANN,  2  Sumn.  206,  Fed.  Cas.  No.  12,342;  Key  City,  14 
Wall.  653,  20  L.  Ed.  S96 ;  Queen  (D.  C.)  78  Fed.  155 ;  Pacific  Coast 
S.  S.  Co.  v.  Bancroft-Whitney  Co.,  94  Fed.  ISO,  36  C.  C.  A.  135: 
Queen  of  the  Pacific,  ISO  U.  S.  49,  21  Sup.  Ct.  27S,  45  L.  Ed.  419: 
Norfolk  Sand  &  Cement  Co.  v.  Owen,  115  Fed.  778,  53  C.  C.  A.  96. 
post  p.  392. 


106  BOTTOMRY   AND    RESPONDENTIA  (Ch.  4 

a  mortgage  to  secure  a  subsequent  debt  is  a  purchaser  for 
value,  but  not  to  secure  an  antecedent  debt.32  As  against 
innocent  purchasers,  even  as  short  a  delay  as  three  months 
in  enforcement,  where  there  was  ample  opportunity,  has 
been  held  to  render  a  claim  stale.33  In  older  days,  when 
voyages  were  longer,  they  were  often  held  stale  after  one 
voyage.34  On  the  Lakes,  the  limit,  in  the  absence  of  special 
circumstances,  is  one  season  of  navigation.35  In  short,  the 
time  varies  according  to  the  opportunity  of  enforcement, 
the  change  in  the  situation  of  the  parties,  and  the  hardship 
occasioned  or  avoided  by  enforcing  it  or  denying  it.36  The 
supply  man  acquires  his  right  against  the  vessel,  not  only 
by  furnishing  necessaries  in  his  own  port,  but  by  shipping 
them  to  the  vessel  in  another  port.37 

Necessaries  are  not  "furnished"  to  a  vessel,  unless  that 
particular  vessel  is  in  the  mind  of  the  parties.  Though  it 
may  not  be  necessary  to  show  that  they  were  actually  used 
upon  her,  an  indiscriminate  furnishing  of  necessaries  to  the 
owner  of  a  fleet  does  not  give  an  indiscriminate  lien  upon 
the  fleet,  regardless  of  the  manner  in  which  the  necessaries 
were  applied.38 

32CHUSAN,  2  Story,  455,  Fed.  Cas.  No.  2,717;  Ella  (D.  C.)  84 
Fed.  471. 

■■:■■  Coburn  v.  Factors'  &  Traders'  Ins.  Co.  (C.  C.)  20  Fed.  644. 

3  4  General  Jackson,  1  Spr.  554,  Fed.  Cas.  No.  5,314. 

36  Hercules,  1  Spr.  534,  Fed.  Cas.  No.  6,401;  Nebraska,  00  Fed. 
1009,  17  C.  C.  A.  94. 

»« Harriet  Ann,  6  Biss.  13,  Fed.  Cas.  No.  6,101;  Eliza  Jane,  1 
Spr.  152.  Fed.  ('as.  No.  4,363;  CHUSAN,  2  Story,  455,  Fed.  Cas.  No. 
2,717;  Thomas  Sherlock  (D.  C.)  22  Fed.  253;  Tiger  (D.  C.)  90  Fed. 
820. 

•  Marion  S.  Harris,  85  Fed.  79S,  29  C.  C.  A.  42S ;    Yankee,  233  Fed. 
910.  147  C.  C.  A.  593. 

38  James  H.  Prentice  (D.  C.)  36  Fed.  777  (decided  before  the  act); 
Aitcheson  v.  Endless  chain  Dredge  (D.  C.)  40  Fed.  253  (decided 
before  the  act);  Astor  Trust  Co.  v.  B.  V.  White  &  Co.,  241  Fed.  57, 
154  C.  C.  A.  57.  L.  R.  A.  1917E,  526;  Cora  P.  White  (D.  C.)  243  V^l 
240;    Walter  Adams.  253  Fed.  20,  165  C.  C.  A.  40. 


§  48)  SUPPLIES,   REPAIRS,  AND   OTHER    NECESSARIES  107 

Advances 

Not  only  the  supply  man  can  proceed  against  the  vessel, 
but  any  one  who  advances  money  on  the  credit  of  the  ves- 
sel, express  or  implied,  for  the  purpose  of  paying  for  such 
necessaries,  has  a  claim  against  the  vessel.  In  other  words, 
advances  of  money  under  such  circumstances  are  neces- 
saries.39 But  money  lent  to  the  master  or  owner  without 
reference  to  the  ship,  or  money  advanced  to  pay  off  claims 
not  maritime,  cannot  be  collected  by  suit  against  the  ves- 
sel.40 

The  fourth  section  of  the  act  specifically  provides  that  it 
shall  not  be  construed  to  "affect  the  rules  of  law  now  exist- 
ing. *  *  *  jn  regard  to  the  right  to  proceed  against  a 
vessel  for  advances."  41 

SAME— "NECESSARIES"   DEFINED 

48.  "Necessaries,"  in  this  connection,  mean  whatever  is  fit 
and  proper  for  the  service  on  which  a  vessel  is  en- 
gaged. Whatever  the  owner  of  that  vessel,  as  a 
prudent  man,  would  have  ordered  if  present  at  the 
time,  comes  within  the  meaning  of  the  term,  as  ap- 
plied to  those  repairs  done  or  things  provided  for 
the  ship  by  order  of  the  master,  or  other  legal  rep- 
resentative of  the  owner. 

Care  must  be  taken  to  consider  the  meaning  of  the  term 
"necessaries,"  as  used  in  connection  with  this  doctrine  of 
supplies  and  repairs.  In  a  broad  sense  of  the  word,  any- 
thing is  necessary  for  the  ship  which  tends  to  facilitate  her 
use  as  a  ship  or  to  save  her  from  danger.     In  that  sense 

'Emily  B.  Souder,  17  Wall.  6G6,  21  L.  Ed.  6S3;  Guiding  Star 
(C.  C.)  18  Fed.  263;  Worthington,  133  Fed.  725,  66  C.  C.  A.  555, 
70  L.   R.  A.  353. 

<o  A.  R.  Dunlap,  1  Low.  350,  Fed.  Cas.  No.  513. 

4i  In  view  of  this  language  in  the  act,  the  statement  in  the  Cim- 
bria  (D.  C.)  214  Fed.  at  page  129  is  a  little  hard  to  understand. 


108  BOTTOMRY   AND    RESPONDENTIA  (Ch.  4 

seaman's  wages,  towage,  salvage,  and  many  other  things 
which  come  under  the  admiralty  jurisdiction  would  be  nec- 
essary. But  a  thing  may  be  necessary  without  being  a  nec- 
essary. The  former  is  not  the  meaning  when  used  in  con- 
nection with  supplies  and  repairs.  If  it  were,  then,  as  nec- 
essaries furnished  a  domestic  vessel  were  prior  to  the  Act 
the  basis  of  a  lien  against  a  vessel  only  when  a  state  stat- 
ute gave  it,  that  would  have  put  it  in  the  power  of  a  state 
legislature  to  modify  some  of  the  most  ancient  grounds  of 
jurisdiction  in  admiralty.  In  the  sense  in  which  the  word 
is  now  being  used,  it  is  associated  with  supplies  and  repairs, 
and  it  means  such  things  of  that  general  nature  as  are  fit 
and  proper  for  the  use  of  the  ship.  It  is  not  used  in  as 
strong  a  sense  as  its  colloquial  meaning  would  imply.  It 
does  not  mean  essential,  but  fit  and  proper.  Whatever  is 
fit  and  proper  for  the  use  of  a  vessel  as  a  profitable  in- 
vestment, and  would  have  been  ordered  by  a  prudent  own- 
er if  present,  comes  within  the  term.4- 

For  reasons  given  above,  salvage  is  not  a  necessary  in 
this  sense,  but  an  independent  ground  of  admiralty  lien, 
though  repairs  connected  therewith  may  be.  The  act  uses 
the  word  in  its  former  sense,  and  was  not  intended  to 
change  it.43 

The  same  is  true  as  to  towage.44 

It  has  been  held,  also,  that  the  services  of  a  contracting 
stevedore  in  furnishing  men  to  load  or  discharge  a  ship  arc 
necessaries.45 

§  48.  42  GRAPESHOT,  9  Wall.  120,  19  L.  Ed.  G31 ;  J.  Doherty 
(D.  C.)  207  Fed.  997. 

«  Convoy  (D.  C.)  257  Fed.  843. 

44  J.  Doherty  (D.  C)  207  Fed.  997:  Hatteras,  253  Fed.  51S,  166  C. 
C.  A.  5S6. 

45  Rupert  City  (D.  C.)  213  Fed.  263.  This  seems  to  the  author  a 
stretch  of  the  doctrine.  The  services  of  a  stevedore  who  works 
manually  are  more  like  those  of  a  seaman;  and  an  attempt  to  draw 
a  distinction  between  the  man  who  works  and  the  man  who  super- 
intends is  indulging  in  mere  refinement.  Rut  some  courts  have 
drawn  it.     See  post,  p.  121. 


§  48)         SUPPLIES,  REPAIRS,  AND  OTHER   NECESSARIES  109 

The  definition  given  in  the  black-letter  heading  is  that 
of  Lord  Tenterden  in  Webster  v.  Seekamp.46  It  is  adopted 
by  Sir  Robert  Phillimore  in  the  Riga,47  a  leading  case  on 
the  subject.  It  is  defined  by  Judge  Dyer  to  mean  "those 
things  which  pertain  to  the  navigation  of  the  vessel,  and 
which  are  practically  incidental  to,  and  connected  with,  her 
navigation."  48 

It  is  wider  in  its  meaning  than  when  used  by  the  com- 
mon-law courts  in  reference  to  the  contracts  of  infants. 
For  instance,  supplies  to  the  restaurant  of  a  passenger 
steamer  have  been  allowed.49  And  Judge  Benedict  has  car- 
ried the  principle  so  far  as  to  hold  that  liquor  furnished  to 
the  bar  of  a  passenger  steamer  comes  under  the  same  head, 
as  "supplying  the  ordinary  wants  of  the  class  of  passengers 
transported  on  the  boat."  50  It  includes  muskets  or  arms 
to  protect  a  vessel  from  pirates.51  It  has  been  held  to  in- 
clude provisions,  money,  rope,  life-preservers,  chronome- 
ters, and  nets  and  other  equipment  for  a  fishing  vessel.52 

This  doctrine  is  analogous  to  the  remedy  given  by  sec- 
tion 6438  of  the  Virginia  Code  to  those  who  furnish  sup- 
plies to  corporations.  In  Fosdick  v.  Schall,53  the  Supreme 
Court  had  decided  that  men  who  furnished  supplies  to  a 
railroad  necessary  to  keep  it  going  had  an  equitable  charge 
on  the  income  prior  to  a  previous  mortgage,  thus  overturn- 
ing common-law  ideas,  and  ingrafting  an  admiralty  prin- 


ce 4  Barn.  &  Aid.  352. 
47  L.  R.  3  A.  &  E.  516. 
4  8  Hubbard  v.  Roach  (C.  C)  9  Biss.  375,  2  Fed.  393. 

4  9  Plymouth  Rock,  13  Blatchf.  505,  Fed.  Cas.  No.  11,237. 

eo  Long  Branch,  9  Ben.  S9,  Fed.  Cas.  No.  S,484 ;  Mayflower  (D.  C.) 
39  Fed.  42 ;   compare  Sterling  (D.  C.)  230  Fed.  543. 

6i  Weaver  v.  S.  G.  Owens,  1  Wall.  Jr.  359,  Fed.  Cas.  No.  17,310. 

52  Ellen  Holgate  (D.  C.)  30  Fed.  125;  Ludgate  Hill  (D.  C.)  21  Fed. 
431 ;  Belle  of  the  Coast,  72  Fed.  1019,  19  C.  C.  A.  345 ;  Georgia  (D. 
C.)  32  Fed.  637;  Hiram  R.  Dixon  (D.  C.)  33  Fed.  297;  Geisha  (D. 
C.)  200  Fed.  865 ;    Fortuna  (D.  C.)  213  Fed.  284. 

5  3  99  U.  S.  235,  25  L.  Ed.  339. 


110  BOTTOMRY   AND   RESPONDENTIA  (Ch.  4 

ciple  upon  chancery  law.  Section  6438  of  the  Code  and 
similar  statutes  of  other  states  have  adopted  it  as  a  part  of 
our  statute  law. 


SAME— NECESSARIES  FURNISHED  DOMESTIC 
VESSELS 

49.  For  supplies  or  other  necessaries  furnished  a  domestic 
vessel  there  was  prior  to  the  Act  of  June  23,  1910, 
no  implied  lien  unless  there  was  a  local  statute 
giving  it. 

As  in  such  cases  the  owner  is  accessible,  the  reason  for 
giving  the  master  power  to  bind  the  vessel  ceases,  and 
hence  the  court  decided  early  in  its  history  that  in  case  of 
supplies  to  domestic  vessels  the  credit  was  presumptively 
given  to  the  owner,  and  not  to  the  vessel.54 

Validity  of  State  Statutes  Giving  Such  Liens 

In  the  course  of  the  opinion  the  court  intimated  that  if 
a  state  statute  gave  a  right  against  the  vessel  in  such  cases 
they  might  enforce  it.  Acting  upon  the  hint,  many  states 
passed  acts  giving  rights  of  action  in  rem  against  domestic 
vessels,  and  even  authorized  their  own  courts  to  enforce 
them. 

The  Judiciary  Act  of  1789  provided  that  the  admiralty 
jurisdiction  of  the  federal  courts  should  be  exclusive,  and 
conferred  this  jurisdiction  in  the  first  instance  on  the  Dis- 
trict Courts,  but  added  a  clause  saving  to  the  common-law 
courts  all  remedies  which  the  common  law  was  competent 
to  give.  Hence  the  courts  had  to  decide  that  those  state 
enactments  which  purported  to  bestow  on  their  courts  ju- 
risdiction in  rem  to  enforce  a  maritime  right  were  uncon- 
stitutional. This  principle,  however,  only  applied  to  pro- 
ceedings in  rem  pure  and  simple.  For  instance,  an  act 
which  gave  seamen  a  right  to  sue  the  owner  for  their  wag- 

§  4!).     ■■■  GENERAL  SMITH,  4  Wheat.   143,  4  L.  Ed.  GOO. 


§  49)         SUPPLIES,  REPAIRS,  AND   OTHER   NECESSARIES  HI 

es  in  a  state  court  was  held  not  a  proceeding  in  rem,  though 
accompanied  by  an  attachment ;  for  it  was  still  against  the 
owner  by  name,  not  against  the  vessel  by  name,  and  the 
attachment  was  only  an  incident.55  On  the  other  hand,  a 
statute  authorizing  a  proceeding  in  rem  directly  against  the 
vessel,  in  which  any  notice  to  the  owners  was  only  an  in- 
cident, and  only  given  if  known,  was  held  unconstitu- 
tional.56 

But,  though  the  courts  decided  that  state  legislation 
could  not  confer  on  state  courts  the  right  to  enforce  an  ad- 
miralty claim  against  a  vessel  by  pure  proceedings  in  rem, 
they  also  decided  that,  as  it  was  in  its  nature  a  maritime 
cause  of  action,  the  United  States  courts  could  enforce  it. 
In  other  words,  the  effect  of  these  decisions  was  that  a 
state  statute  could  create  a  right  to  proceed  in  rem  on  a 
maritime  cause  of  action  where  none  had  previously  exist- 
ed, and  that  the  federal  courts,  finding  such  a  maritime  right 
in  existence,  no  matter  how  it  arose,  would  enforce  it. 

It  is  analogous  to  the  principle  that  an  admiralty  court 
will  enforce  a  lien  given  by  a  foreign  law,  though,  if  the 
cause  of  action  had  arisen  in  the  jurisdiction  of  the  forum, 
no  lien  would  have  been  created.57 

The  power  of  state  statutes  to  affect  admiralty  jurisdic- 
tion has  been  greatly  restricted  by  some  late  decisions  of 
the  Supreme  Court.  In  Southern  Pacific  Co.  v.  Jensen  it 
was  held  that  the  Workmen's  Compensation  Law  of  New 
York  did  not  and  could  not  take  away  the  right  of  an  em- 
ploye injured  on  waters  within  the  jurisdiction  of  the  ad- 
miralty to  pursue  the  remedies  given  him  by  admiralty 
law.    The  court  says : 


es  Garcia  y  Leon  v.  Galceran,  11  Wall.  1S5,  20  L.  Ed.  74 ;  Rounds 
v.  Cloverport  Foundry  &  Machine  Co.,  237  U.  S.  303,  35  Sup.  Ct.  59G. 
59  L.  Ed.  966. 

es  Glide,  167  U.  S.  606,  17  Sup.  Ct.  930,  42  L.  Ed.  296. 

57  Maggie  Hammond,  9  Wall.  435,  19  L.  Ed.  772 ;  Havana,  1  Spr. 
402,  Fed.  Cas.  No.  6,226. 


112  BOTTOMRY   AND    RESPONDENTIA  (Ch.  4 

"No  such  legislation  is  valid  if  it  contravenes  the  essential 
purpose  expressed  by  an  act  of  Congress,  or  works  material 
prejudice  to  the  characteristic  features  of  the  general  mari- 
time law,  or  interferes  with  the  proper  harmony  and  uni- 
formity of  that  law  in  its  international  and  interstate  re- 
lations." 58 

In  Union  Fish  Co.  v.  Erickson59  it  was  held  that  the  con- 
tract of  the  captain  of  a  ship  is  maritime,  and  could  not  be 
rendered  void  by  a  state  statute  of  frauds  requiring  con- 
tracts to  be  in  writing  that  were  not  to  be  performed  with- 
in a  year. 

The  Tivelfth  Admiralty  Rule 

By  the  act  of  August  23,  1842  (5  Stat.  516),  Congress 
conferred  upon  the  Supreme  Court  power  to  prescribe  the 
forms  and  modes  of  process  and  proceeding  and  the  prac- 
tice generally  in  equity  and  admiralty  for  the  federal  courts 
of  original  jurisdiction.  Acting  under  this  authority,  the 
court  at  December  term,  1844,  promulgated  the  admiralty 
rules. 

The  twelfth  of  these  rules  provided :  "In  all  suits  by  ma- 
terialmen for  supplies  or  repairs,  or  other  necessaries,  for 
a  foreign  ship,  or  for  a  ship  in  a  foreign  port,  the  libelant 
may  proceed  against  the  ship  and  freight  in  rem,  or  against 
the  master  or  owner  alone  in  personam.  And  the  like  pro- 
ceeding in  rem  shall  apply  to  cases  of  domestic  ships, 
where,  by  the  local  law,  a  lien  is  given  to  materialmen  for 
supplies,  repairs  or  other  necessaries. " 

This  was  a  mere  affirmation  of  the  then  existing  practice. 
It  remained  in  this  form  until  1859,  when  the  court,  im- 
pressed by  the  diversity  in  the  state  statutes  which  it  had 

5  8  244  U.  S.  20..,  'M  Sup.  Ct.  524.  Gl  L.  Ed.  10NG,  L.  R.  A.  391SC, 

151,  Ann.  Cas.  1917E,  000.     See,  also,  Chelentig  v.  Luckenbach  S.  S. 

Co.,  247  U.  s.  372,  38  S.  Ct.  501,  02  L.  Ed.  1171;    Corsica  Transil 

Co.  v.  W.  s.  Moore  Grain  <•<>.,  253  Fed.  689,  L65  C.  C.  A.  283;   West- 

i  ucl  Co.  v.  Garcia  (C.  C.  A.)  255  Fed.  817. 

59  248  U.  S.  308,  ."'.I  Sup.  Ct.  1  L2,  63  I,.  Ed.  201. 


§  49)  SUPPLIES,   REPAIRS,  AND   OTHER   NECESSARIES  113 

undertaken  to  recognize,  amended  it  so  as  to  read  as  fol- 
lows :  "In  all  suits  by  materialmen  for  supplies,  or  repairs, 
or  other  necessaries  for  a  foreign  ship,  or  for  a  ship  in  a 
foreign  port,  the  libelant  may  proceed  against  the  ship  and 
freight  in  rem,  or  against  the  master  or  owner  alone  in 
personam.  And  the  like  proceeding  in  personam,  but  not  in 
rem,  shall  apply  to  cases  of  domestic  ships,  for  supplies,  re- 
pairs, or  other  necessaries." 

The  effect  of  this  was  to  take  away  the  right  to  proceed 
in  rem  for  necessaries  furnished  to  domestic  vessels,  though 
given  by  a  state  statute.  And  in  the  St.  Lawrence,60  de- 
cided soon  afterwards,  Chief  Justice  Taney  justified  this 
action  by  saying  that  the  question  whether  a  creditor 
should  proceed  in  rem  or  in  personam  to  enforce  a  mari- 
time right  was  a  question  of  procedure,  which  the  court 
might  allow  or  abolish  at  its  pleasure. 

This  rule  remained  in  this  form  till  May  6,  1872,  when 
the  court  again  amended  it  so  as  to  read  as  follows :  "In 
all  suits  by  materialmen  for  supplies  or  repairs  or  other 
necessaries,  the  libelant  may  proceed  against  the  ship  and 
freight  in  rem,  or  against  the  master  or  owner  alone  in 
personam."  The  effect  of  this  was  to  give  exactly  the  same 
procedure  in  the  case  of  domestic  and  foreign  vessels. 

It  does  not  mention  the  existence  of  a  state  statute  as 
requisite  to  the  enforcement  of  a  lien  against  a  domestic 
vessel.  If,  as  Justice  Taney  says,  it  is  a  mere  question  of 
procedure  which  the  court  can  give  or  take  away  at  will,  it 
is  difficult  to  see  why  the  language  of  this  rule  did  not 
give  the  right  independent  of  state  statutes,  though  the 
decisions  have  settled  that  prior  to  the  act  of  June  23,  1910, 
in  case  of  domestic  vessels  it  was  only  enforced  when  giv- 
en by  a  state  statute.  But,  in  the  great  case  of  the  LOT- 
TA WANNA,01  Mr.  Justice  Bradley  said  that  a  right  to 
proceed  in  rem  was  not  a  mere  right  of  procedure,  but  a 

so  1  Black,  522,  17  L.  Ed.  ISO. 
si  21  Wall.  558,  22  L.  Ed.  654. 
Hughes,Adm.(2d.  Ed.) — 8 


114  BOTTOMRY  AND   RESPONDENTIA  (Ch.  i 

right  of  property  which  the  court  by  rule  could  not  give  or 
take  away,  and  that  the  amendment  of  1872  was  not  in- 
tended to  give  any  lien,  but  merely  to  remove  all  impedi- 
ments in  enforcing  such  as  already  existed.  This  being  so, 
the  kaleidoscopic  changes  of  the  twelfth  rule  only  created 
confusion.  Prior  to  its  enactment  in  1844,  the  right  given 
by  state  statutes  had  been  enforced,  and  now,  irrespective 
of  the  act  of  June  23,  1910,  the  rule,  as  construed  by  its 
makers,  creates  no  new  right,  but  merely  removes  impedi- 
ments in  enforcing  a  right  already  existing. 

The  fact  is  that  the  whole  doctrine  is  unsatisfactory  and 
illogical  in  its  development.  Its  difficulties  commenced 
when  the  court,  following  the  narrow  views  of  the  English 
law,  denied  that  any  right  of  procedure  in  rem  for  neces- 
saries existed  in  the  case  of  domestic  vessels.  Any  one  who 
reads  the  dissenting  opinion  of  Mr.  Justice  Clifford  in  the 
LOTTAWANNA  CASE  will  be  convinced  that  by  the 
general  principles  of  maritime  law  there  was  no  distinction 
between  foreign  and  domestic  vessels,  and  that  it  would 
have  saved  much  confusion  and  litigation  if  the  court  had 
promptly  come  out  and  corrected  its  error,  as  it  did  on  the 
tide-water  question. 

It  has  been  corrected  at  last  by  the  act.  of  June  23,  1910, 
but  it  took  an  act  of  Congress  to  do  it. 

Mr.  Justice  Bradley,  in  the  majority  opinion  of  that  same 
case,  is  forced  to  say  that  this  idea  of  a  state  giving  an  ad- 
ditional remedy  to  an  admiralty  contract  and  of  a  federal 
court  recognizing  and  enforcing  it  is  anomalous.  He  at- 
tributes it  to  the  fact  that  the  state  admiralty  courts  prior 
to  the  Constitution  recognized  and  enforced  it,  and  that  the 
new  federal  judges,  many  of  whom  had  been  state  judge-, 
continued  the  same  jurisdiction,  without  recognizing  their 
altered   relations. 

Perhaps  a  stronger  reason  is  that  state  statutes  only  in- 
cidentally affecting  commerce,  like  pilotage  laws,  quaran- 
tine   laws,   and   laws    authorizing   bridges    over   navigable 


§  50)         SUPPLIES,  REPAIRS,  AND   OTHER   NECESSARIES  H5 

streams,  have  been  upheld  as  valid  in  the  absence  of  leg- 
islation by  Congress,  and  that  these  statutes  belong  to  the 
same  category.62 

At  the  same  time  it  must  be  remembered  that  the  admi- 
ralty jurisdiction  is  not  dependent  upon  the  commerce 
clause  of  the  Constitution,  but  is  derived  from  an  entirely 
different  one.63 

The  history  and  changes  of  the  twelfth  admiralty  rule 
may  be  traced  in  the  cases  stated  in  the  footnote.64 

In  general,  this  right  against  domestic  vessels  was  gov- 
erned by  the  principles  which  apply  in  case  of  foreign  ves- 
sels. It  is  prior  to  nonmaritime  liens ;  it  is  not  waived  by 
taking  a  note;  it  becomes  stale  usually  in  less  time  than 
in  case  of  foreign  vessels,  as  it  is  more  easily  enforceable ; 
it  is  given  for  advances,  and  for  things  not  merely  neces- 
sary, but  fit  and  proper. 

SAME— DOMESTIC  LIENS  AS  AFFECTED  BY 
OWNER'S  PRESENCE 

50.  Prior  to  the  act  of  June  23,  1910,  the  owner's  presence 
rebutted  the  presumption  of  credit  to  the  ship  in 
the  case  of  domestic  as  well  as  foreign  vessels,  but 
the  act  abolishes  this  doctrine,  so  that  the  furnish- 
ing of  necessaries  to  a  domestic  vessel  gives  the 
lien  just  as  in  the  case  of  a  foreign  vessel. 

Prior  to  the  act  there  were  some  decisions  holding  that 
under  the  general  terms  of  state  statutes  the  mere  furnish- 
ing of  the  service  gave  a  lien  on  domestic  vessels,  though 

62  21  Wall.  5S1,  5S2,  22  L.  Ed.  6G4. 

es  Const,  art.  3,  §  2;  EX  PARTE  GARNETT,  141  TJ.  S.  1,  11  Sup. 
Ct.  S40,  35  L.  Ed.  631. 

64  GENERAL  SMITH.  4  Wheat.  443,  4  L.  Ed.  609;  St.  Lawrence, 
1  Black,  522,  17  L.  Ed.  ISO ;  Circassian,  Fed.  Cas.  No.  2.720a ;  LOT- 
TAWANNA,  21  Wall.  558,  22  L.  Ed.  054 ;  J.  E.  RUMBELL,  14S  U. 
S.  1,  13  Sup.  Ct.  49S.  37  L.  Ed.  345. 


116  BOTTOMRY  AND   RESPONDENTIA  (Ch.  4 

the  owner  was  present,  and  independent  of  any  understand- 
ing to  that  effect.65 

But  the  better  opinion  was  that  the  presence  of  the  own- 
er rebutted  the  presumption  of  credit — and  hence  of  a 
maritime  lien — in  the  case  of  domestic  vessels  also.66 


SAME— SHIPBUILDING  CONTRACTS 

51.  A  contract  for  building  a  ship  is  not  maritime,  and 
hence  cannot  be  enforced  in  the  admiralty,  nor 
can  it  be  made  so  by  a  state  statute.  Such  a  stat- 
ute, however,  can  give  a  remedy  to  the  state  courts 
for  its  enforcement. 

The  theory  on  which  these  state  liens  were  enforced  was 
that  they  were  maritime  in  their  nature.  But  a  state  can- 
not make  a  contract  maritime  which  is  not  in  its  nature 
maritime,  nor  attach  a  maritime  lien  to  a  nonmaritime 
cause  of  action.  For  this  reason  a  state  statute  cannot  cre- 
ate a  right  to  proceed  in  the  admiralty  to  enforce  a  con- 
tract for  building  a  ship,  as  the  courts  have  held  these  con- 
tracts not  marine  in  their  nature.  This  was  first  decided 
by  the  Supreme  Court  in  People's  Ferry  Co.  of  Boston  v. 
Beers.67  The  ground  of  the  decision  is  that  such  contracts 
have  no  reference  to  any  voyage,  that  the  vessel  is  then 
neither  registered  nor  licensed  as  a  seagoing  ship,  that  it  is 
a  contract  made  on  land  to  be  performed  on  land,  and  there- 
fore nonmaritime. 

This  decision  was  during  a  period  when  the  Supreme 
Court  was  leaning  against  the  extension  of  admiralty  juris- 

r  Alvira  (D.  C.)  63  Fed.  144;  McRae  v.  Bowers  Dredging  Co.  (C. 
•C.)  86  Fed.  244:    Iris,  100  Fed.  104.  40  C.  C.  A.  301. 

c6  Guiding  Star  (C.  C.)  18  Fed.  203;  Samuel  Marshall,  54  Fed.  396, 
4  C.  0.  A.  385;  Electron,  74  Fed.  6S9,  21  C.  C.  A.  12;  Mack  S.  S. 
Co.  v.  Thompson.  176  Fed.  400.  100  C.  C.  A.  57;  Kate,  104  U.  S. 
458,  17  Sup.  Ct.  135,  41  E.  Ed.  512. 

§  51.     ct  20  Now.  393,  15  L.  Ed.  061. 


§  51)         SUPPLIES,  REPAIRS,  AND   OTHER   NECESSARIES  117 

diction.  It  has  long  repudiated  any  dependence  on  the 
commerce  clause  for  admiralty  jurisdiction.68  And  the  ar- 
gument that  it  was  made  on  land,  to  be  performed  on  land, 
recalls  the  most  bigoted  period  of  English  common-law 
jealousy.  It  is  a  test  no  longer  insisted  on ;  for  it  would 
debar  from  the  admiralty  courts  all  coppering,  painting,  or 
calking  on  marine  railways  or  in  dry  docks,  and  even  sal- 
vage contracts  to  float  a  stranded  vessel. 

A  shipbuilding  contract  is  not  entirely  to  be  performed 
on  land.  When  a  ship  first  floats  upon  her  destined  ele- 
ment, she  is  a  hulk.  Her  masts,  her  sails,  her  anchors,  and 
general  outfit  are  all  added  after  she  is  afloat.  It  might  as 
well  be  said  that  a  bill  of  lading  signed  in  an  agent's  office, 
and  representing  cotton  alongside  a  ship  in  the  sheds 
subject  to  her  order,  is  a  contract  made  on  land,  to  be  per- 
formed on  land.  Under  the  general  maritime  law,  ship- 
building contracts  were  maritime.00 

But,  however  it  may  be  on  principle,  the  law  is  settled 
that  such  contracts  are  not  maritime  in  their  character.70 
This  being  so,  it  necessarily  followed  that  a  state  statute 
could  not  make  them  maritime,  and  so  the  court  soon 
held.71 

As  the  limitation  upon  these  statutes  is  simply  that  they 
shall  not  interfere  with  the  exclusive  jurisdiction  of  the  ad- 
miralty, it  follows  that  any  lien  or  special  process  given  to 
enforce  any  nonmaritime  right  is  valid ;  and  therefore  the 
Supreme  Court  has  upheld  a  special  remedy  conferred  by  a 
state  statute  upon  a  state  court  to  enforce  a  shipbuilding 
contract,  for  the  very  reason  that  it  is  not  maritime.72 

es  EX  PARTE  GARNETT,  141  U.  S.  1,  11  Sup.  Ct.  840,  35  L.  Ed. 
631. 

ss  Ben.  Adm.  §  264. 

to  North  Pae.  S.  S.  Co.  v.  Hall  Bros.  Marine  Ry.  &  Shipbuilding 
Co.,  219  U.  S.  119,  39  Sup.  Ct.  221,  63  L.  Ed.  510;  United  Shores 
(D.  C.)  193  Fed.  552. 

f  i  Roach  v.  Chapman,  22  How.  129,  16  L.  Ed.  294. 

72  Edwards  v.  Elliott,  21  Wall.  532,  22  L.  Ed.  487 ;  Iroquois  Transp. 


118  BOTTOMRY  AND   RESPONDENTIA  (Ch.  4 

SAME— VESSELS  AFFECTED  BY  STATE  STAT- 
UTES 

52.  The  better  opinion  is  that  state  statutes  created  this 
lien  only  on  domestic  vessels,  and  that  the  rights 
of  material  men  against  foreign  vessels  depended 
upon  the  general  maritime  law. 

As  stated  above,  the  distinction  between  supplies  fur- 
nished to  domestic  vessels  and  to  foreign  vessels  is  largely 
artificial,  and  it  is  to  be  regretted  that  it  was  ever  made. 
The  symmetry  of  marine  law  requires  that  the  general  doc- 
trine be  modified  as  little  as  possible.  If  state  statutes  can 
regulate  not  only  claims  against  domestic  vessels,  but 
against  foreign  vessels,  they  can  add  liens  to  maritime  caus- 
es of  action  that  did  not  exist  before,  and  take  them  away 
where  they  did  exist.  Consequently,  a  foreign  vessel  would 
find  a  different  law  in  every  port.  It  is  more  consistent 
with  principle  to  hold,  as  is  historically  true,  that  the  sole 
purpose  and  object  of  these  state  laws  were  to  put  domestic 
vessels  on  the  same  footing  as  foreign  vessels.  The  con- 
verse of  this,  that  they  can  reduce  foreign  vessels  to  the 
basis  of  domestic  vessels,  would  be  a  great  anomaly.  Ac- 
cordingly, the  best-considered  decisions  have  held  that  the 
maritime  rights  of  foreign  vessels  are  independent  of  these 
state  statutes  (as  an  attempt  to  regulate  them  would  be  to 
interfere  with  the  general  admiralty  jurisdiction),  and  that 
these  statutes  regulated  only  rights  against  domestic  ves- 
sels.73 

For  this  reason  the  fifth  section  of  the  act  of  June  23, 
1910,  provided  that  it  should  supersede  all  state  statutes  on 
the  subject. 

Co.  v.  Delaney  Forge  &  Iron  Co.,  205  U.  S.  354,  27  Sup.  Ct.  509,  51 
L.  Ed.  836. 

T8CHUSAN,  2  Story,  455,  Fed.  Cas.  No.  2.717:  Lyttdhurst  (D.  C.) 
is  Fed.  839;  Electron,  7!  Fed.  689,  21  C.  C.  A.  12;  Roanoke.  189 
D.  S.  L85,  23  Sup.  Ct.  491,  47  L.  Ed.  770;  Corsica  Transit  Co.  v. 
W.  s.  Moore  Grain  Co,  253  Fed.  689,  165  C.  C.  A.  283. 


§  54)  stevedores'  contracts  119 


CHAPTER  V 

OF  STEVEDORES'  CONTRACTS,  CANAL  TOLLS,  AND  TOWAGE 

CONTRACTS 

53.  Stevedores'  Contracts — "Stevedore"  Defined. 

54.  Maritime  Character  of  Contracts,  and  Liens  on  Foreign 

and  Domestic  Vessels. 

55.  Privity  of  Contract  Necessary  to  Lien. 

56.  Canal  Tolls. 

57.  Towage — "Service"  Defined. 

58,  59.  Responsibility  as  between  Tug  and  Tow. 

60.  Degree  of  Care  Required  of  Tug. 

61.  For  Whose  Acts  Tug  or  Tow  Liable. 


STEVEDORES'  CONTRACTS— "STEVEDORE" 
DEFINED 

53.  A  stevedore  is  a  workman  or  contractor  who  loads  or 

discharges  a  ship  and  properly  stows  her  cargo. 

SAME— MARITIME  CHARACTER  OF  CONTRACTS, 
AND    LIENS    ON    FOREIGN    AND    DO- 
MESTIC VESSELS 

54.  A  contract  for  such  service  is   maritime,  and  gives  a 

maritime  lien. 

The  services  of  a  stevedore  are  essential  to  the  financial 
success  of  a  ship.  The  modern  ship  is  intricate  and  compli- 
cated in  her  cargo  spaces,  and  it  requires  the  skill  of  an 
expert  to  load  her  to  advantage.  He  must  not  only  know- 
how  best  to  stow  the  cargo  without  loss  of  space,  but  also 
how  to  arrange  it  so  as  to  trim  her  properly,  putting  the 
heavy  nearest  the  bottom  so  as  not  to  make  her  crank ;  and 
he  must  work  with  rapidity,  for  the  daily  demurrage  of  ves- 
sels amounts  to  a  large  sum,  and  every  delay  means  heavy 


120  stevedores'  contracts,  etc.  (Ch.  5 

loss.  In  view  of  the  narrow  margin  on  which  business  is 
conducted  nowadays,  the  proper  stowage,  of  the  cargo 
makes  all  the  difference  between  a  profit  and  a  loss. 

In  view  of  the  importance  of  these  services,  it  is  surpris- 
ing that  its  maritime  character  could  ever  have  been  ques- 
tioned, yet  until  recently  the  preponderance  of  authority 
was  against  it.  The  probable  explanation  is  that,  when  ves- 
sels were  small,  no  great  skill  was  required,  and  the  load- 
ing was  mainly  done  by  the  crew  themselves. 

In  the  Amstel,1  Judge  Betts  denied  the  maritime  char- 
acter of  the  service  on  the  ground  that  it  was  partly  to  be 
performed  on  land,  and  was  no  more  connected  with  the 
good  of  the  vessel  than  a  man  who  hauls  goods  to  the  wharf, 
and  many  cases  follow  this  decision  without  question. 

But  it  has  been  seen  that  in  matters  of  contract  the  test 
is  the  character  of  the  service,  and  not  its  locality.  Accord- 
ingly, in  the  GEORGE  T.  KEMP,2  Judge  Lowell  held  that 
such  services  were  maritime,  and  gave  the  stevedore  a  right 
to  hold  the  vessel  itself,  at  least  if  she  was  a  foreign  vessel, 
and  this  has  been  followed  in  many  later  cases.3 

Some  of  these  cases  hold  that,  although  the  service  is 
maritime,  the  stevedore  has  his  remedy  in  rem  only  against 
a  foreign  ship,  or  against  a  domestic  ship  where  there  is  a 
state  statute  giving  it.  A  typical  case  drawing  this  dis- 
tinction is  the  Gilbert  Knapp.4  It  is  a  good  illustration  of 
the  confusion  caused  in  marine  law  by  the  distinction  drawn 
between  foreign  and  domestic  vessels  in   connection  with 

§S  53-64.     1 1  Blatchf.  &  H.  215,  Fed.  Cas.  No.  339. 

-•  Fed.  Cas.  No.  5,341. 

sLuckenbach  v.  Pearce,  212  Fed.  3SS,  129  C.  C.  A.  64;  Rupert 
City  (D.  C.)  213  Fed.  263;  Atlantic  Transport  Co.  of  West  Virginia 
v.  Imbrovek,  234  U.  S.  52.  ::i  Sup.  Ct.  733,  58  L.  Ed.  1208,  51  L.  R. 
A.  (X.  S.)  1157.  This  last  case  was  a  suit  by  a  stevedore  for  per- 
sonal injuries,  not  u  suit  to  enforce  a  lien  for  services  rendered. 
it  decided  thai  such  service  is  maritime  in  character,  from  which 
the  right  to  proceed  In  rem  ought  to  follow  as  a  corollary. 

4(D.  C.)  37  Fed.  209. 


§  54)  stevedores'  contracts  121 

the  doctrine  of  the  rights  of  material  men.  The  cases  which 
hold  that  a  stevedore  has  no  lien  upon  a  domestic  vessel 
compare  his  work  and  character  to  that  of  a  material  man 
and  follow  those  analogies.  Most  of  these  cases,  when  ex- 
amined, will  appear  to  be  cases  where  the  vessel  actually 
was  a  foreign  vessel,  and  where  this  qualification  was  put  in 
by  the  judge,  not  as  a  decision,  but  as  a  cautious  reservation 
which  might  protect  him  in  future.5 

But  the  better  opinion  is  that  a  stevedore  is  more  like  a 
sailor  than  a  material  man.  The  duties  now  performed  by 
him  under  modern  demands  are  the  same  as  those  that 
sailors  used  to  perform.  No  one  has  ever  supposed  that  a 
sailor  had  no  lien  on  a  vessel  unless  given  by  a  state  statute, 
and  this  distinction  should  not  be  drawn  against  a  steve- 
dore. Accordingly,  in  the  SEGURANCA,6  Judge  Brown 
reviews  this  question,  holds  that  a  stevedore  is  more  like 
a  sailor  than  he  is  like  a  material  man,  and  decides  that 
he  ought  to  have  a  lien  even  in  the  home  port,  just  as  a 
sailor  would  have. 

But,  while  the  individual  workman  is  like  a  sailor  in  his 
rights  when  he  contracts  directly  with  the  ship,  the  above 
and  other  cases  draw  a  distinction  between  his  rights  and 
those  of  a  contracting  stevedore  who  employs  laborers  and 
does  not  work  himself.  He  is  held  to  resemble  a  material  man 
and  his  service  is  on  that  footing.  Hence,  in  the  absence  of 
statute,  he  would  not  on  this  theory  have  a  lien  on  a  domestic 
vessel.7 

The  question  is  not  important  since  the  act  of  June  23, 
1910,8  abolishing  the  distinction  between  domestic  and  foreign 
vessels  as  to  the  presumption  of  credit  if  his  service  is  correct- 
ly classed  as  a  necessary.  If  not  a  lien  independent  of  the  act, 
it  would  he  by  virtue  of  it. 

s  Main,  51  Fed.  954,  2  C.  C.  A.  569 ;    Norwegian  S.  S.  Co.  v.  Wash- 
ington, 57  Fed.  224,  6  C.  C.  A.  313 ;    Scotia  (D.  C.)  35  Fed.  916. 
«  (D.  C.)  58  Fed.  908. 

7  Rupert  City  (D.  C.)  213  Fed.  263 ;   ante,  p.  10S. 
s  30  Stat.  604  (TJ.  S.  Comp.  St.  §§  7783-7787). 


122  stevedores'  contracts,  etc.  (Ch.  5 

SAME— PRIVITY   OF  CONTRACT  NECESSARY 
TO  LIEN 

55.  This  being  a  lien  arising  from  contract,  only  those  are 
entitled  to  it  who  have  a  contract  with  the  vessel. 

It  is  not  like  a  subcontractor's  lien  under  a  state  mechan- 
ic's lien  law.  Hence,  if  a  vessel  employs  a  stevedore  to 
load  her,  he  would  have  a  lien,  but  the  workmen  employed 
by  him  would  not,  for  their  contract  would  be  with  him,  and 
not  with  the  vessel.  So  if  a  vessel  comes  under  a  charter 
party,  by  which  the  charterer  is  to  load  her  and  pay  a  lump 
sum  for  her  use,  it  is  no  interest  of  the  vessel  whether  the 
charterer  loads  her  or  not.  If  he  does  not,  he  will  have  to 
pay  the  charter  price  for  her  use  just  the  same,  and  no  loss 
would  be  entailed  upon  the  vessel,  as  she  would  get  dead 
freight.  In  such  case,  the  charterer  would  be  an  independ- 
ent contractor,  and,  if  he  employs  a  stevedore,  the  latter 
would  have  no  contract  with  the  vessel  itself,  and  would 
have  to  look  to  him.  On  principle,  this  doctrine  is  clear. 
The  only  confusion  which  has  arisen  under  it  at  all  is  that 
frequently  the  charterer  is  not  only  charterer,  but  agent 
of  the  vessel,  having  authority  from  the  vessel.  If  the 
stevedore  deals  with  him  in  that  capacity,  and  does  not 
know  the  limitations  of  his  power,  or  is  not  so  put  upon 
inquiry  as  to  charge  him  with  knowledge,  it  may  sometimes 
be  the  case  that  the  vessel  will  be  bound,  but  the  natural 
presumption  would  be  the  other  way." 

The  relation  between  the  stevedore  and  ship  is  but  a 
branch  of  the  general  law  of  master  and  servant,  and  is  for- 
eign to  the  present  subject.  He  is  so  far  the  agent  of  the 
ship  as  to  bind  the  ship  by  his  acts,  even  when  the  charter 

b  That  a  contract  with  the  vessel  must  be  shown,  see  Flattie  M. 
Bain  (D.  C.)  20  IV,].  389;  Mark  Lane  (D.  C.)  13  Fed.  S00 ;  Cliickhule 
(D.  C.)  120  Fed.  1003. 


§  56)  CANAL  TOLLS  123 

party  expressly  requires  the  ship  to  employ  the  charterer's 
stevedore,  as  is  frequently  the  case.10 


CANAL  TOLLS 

56.  Tolls  due  by  a  vessel  for  use  of  a  canal  are  a  maritime 
contract,  and   can  be  enforced  by  a  libel  in  rem  in 

admiralty. 

In  the  St.  Joseph,11'  a  corporation  was  authorized  by  its 
charter  to  improve  a  navigable  stream  and  charge  for  the 
use  of  the  same,  and  the  charter,  which  was  a  public  one 
granted  by  act  of  the  Legislature,  made  these  tolls  a  lien 
in  rem  upon  the  vessel.  The  court  held  that  the  contract 
was  maritime,  and  could  be  enforced  in  admiralty  against 
the  vessel. 

In  the  Bob  Connell,12  the  court  held  that  a  service  of 
this  sort  was  maritime,  likened  it  to  the  lien  of  a  material 
man,  and  held  that  it  could  be  enforced  against  a  domestic 
vessel  if  there  was  a  state  statute,  and  not  if  there  was  no 
statute. 

As  these  decisions  treat  it  in  the  nature  of  a  necessary,  it 
follows  that  there  is  no  difference  between  domestic  and 
foreign  vessels,  but  there  would  be  a  lien  upon  both  under 
the  act  of  June  23,  1910.13 

io  T.  A.   Goddard   (D.  C.)   12  Fed.   174;    Brooks  v.  Hilton-Dodge 
Lumber  Co.,  229  Fed.  70S,  144  C.  C.  A.  118. 
§  56.     ii  Fed.  Cas.  No.  12,230. 

12  (C.  C.)  1  Fed.  218. 

13  36  Stat.  604  (U.  S.  Coinp.  St.  §§  7783-7787). 


124  stevedores'  contracts,  etc.  (Ch.  5 


TOWAGE— "SERVICE"  DEFINED 

57.  Towage  is  a  service  rendered  in  the  propulsion  of  un- 
injured vessels  under  ordinary  circumstances  of 
navigation,  irrespective  of  any  unusual  peril. 

This  has  become  a  topic  of  steadily  increasing  impor- 
tance. The  saving  of  time  and  diminution  of  risk  accom- 
plished by  the  use  of  tugboats  has  caused  every  harbor  to  be 
thronged  with  them,  from  the  wheezing  little  high-pressure 
boat  that  pulls  watermelon  sloops  and  oyster  pungies,  to 
the  magnificent  ocean-going  triple  expansion  tugs,  equip- 
ped with  machinery,  bitts,  and  hawsers  strong  enough  to 
tow  a  fleet.  Their  services  are  not  limited  to  towing  sail 
vessels,  but  in  contracted  harbors  the  long,  narrow  mod- 
ern steamers,  in  turning  or  docking,  do  not  disdain  their  aid. 

It  is  often  hard  to  draw  the  line  between  a  towage  and  a 
salvage  service.  When  a  tug  is  taken  by  a  sound  vessel, 
as  a  mere  means  of  saving  time  or  from  considerations  of 
convenience,  the  service  would  be  classed  as  towage,  while 
if  the  vessel  is  disabled  and  in  need  of  assistance,  to  escape 
actual  or  possible  risk  the  service  is  a  salvage  service,  of  a 
high  or  low  merit  according  to  circumstances.14 

Indeed,  a  service  may  start  as  towage  and  end  as  salvage. 
For  instance,  a  tug  starts  to  tow  a  vessel  from  one  point  to 
another  under  contract  for  a  certain  sum.  The  towage  con- 
tract is  presumed  to  cover  only  the  ordinary  incidents  of 
the  voyage.  If  a  tempest  arises  of  sufficient  severity  to 
greatly  endanger  or  to  disable  the  tow,  the  towage  con- 
tract is  abrogated  by  the  vis  major,  and  the  tug  may  claim 

i*  Reward,  1  W.  Rob.  174;  Princess  Alice,  3  W.  Rob.  138;  Emily 
B.  Soudcr,  15  Blatch.  185 ;  Fed.  Cas.  No.  4,458 ;  J.  C.  Pfluger  (D.  C.) 
109  Fed.  93  ;  Lowtbcr  Castle  (D.  C.)  195  Fed.  G04.  Though  the  vessel 
may  be  partially  disabled,  the  service  would  still  be  towage,  if  she 
was  In  no  risk.  Robert  S.  Besnard  (D.  C.)  144  Fed.  992;  Josepn  F. 
Clinton.  250  Fed.  977,  163  C.  0.  A.  227. 


§§  58-59)  towage  125 

salvage,  provided  she  has  not  been  negligent  in  unneces- 
sarily exposing  her  tow,  or  bringing  about  the  dangerous 

situation.15 


SAME— RESPONSIBILITY  AS  BETWEEN  TUG  AND 

TOW 

58.  The  tow  is  not  liable  for  the  tug's  acts  where  the  latter 

directs  the  navigation. 

59.  It  is  liable  for  its  own  negligence,  and  may  be  for  the 

tug's,  where  it  directs  the  navigation. 

The  relation  between  tug  and  tow,  under  the  American 
decisions,  under  ordinary  circumstances,  is  that  of  inde- 
pendent contractor,  not  that  of  principal  and  agent.  The 
tug  is  not  the  servant  or  employe  of  the  tow,  and  therefore 
the  tow  is  not  responsible  for  the  acts  of  the  tug.  Hence,  if 
the  tow  collide  with  some  vessel  during  the  voyage,  it  is 
not  liable  for  the  damage  caused  thereby,  unless  some  neg- 
ligence contributing  to  the  collision  is  proved  against  the 
tow.  The  law  is  summarized  in  STURGIS  v.  BOYER,1'6 
where  the  court  says:  "Looking  at  all  the  facts  and  circum- 
stances of  the  case,  we  think  the  libelants  are  clearly  enti- 
tled to  a  decree  in  their  favor;  and  the  only  remaining 
question  of  any  importance  is  whether  the  ship  and  the 
steam  tug  are  both  liable  for  the  consequences  of  the  colli- 
sion, or,  if  not,  which  of  the  two  ought  to  be  held  respon- 
sible for  the  damage  sustained  by  the  libelants.  Cases  arise, 
undoubtedly,  when  both  the  tow  and  the  tug  are  jointly  lia- 

15  H.  B.  Foster,  Fed.  Cas.  No.  6,290;  Minnehaha,  Lush.  335;  Mad- 
ras, [1898]  P.  90 ;    Harvest  Home,  [1904]  P.  409 ;    Id.,  [1905]  P.  177. 

§§  5S-59.  is  24  How.  110,  16  L.  Ed.  591.  See,  also,  Clarita,  23 
Wall.  1,  23  L.  Ed.  146;  Eugene  F.  Moran  v.  New  York  Cent.  &  H. 
R.  It.  Co.,  212  I'.  S.  466,  29  Sup.  Ct.  339,  53  L.  Ed.  600;  C.  W. 
Mills  (D.  C.)  241  Fed.  204;  Id.,  241  Fed.  378,  154  C.  C.  A.  651: 
Cromwell  (D.  C.)  247  Fed.  207;  Id.  (C.  C.  A.)  259  Fed.  166;  Vio- 
letta  (D.  C.)  141  Fed.  690 ;  Id.,  153  Fed.  1023,  82  C.  C.  A.  078. 


126  stevedores'  contracts,  etc.  (Ch.  5 

ble  for  the  consequences  of  a  collision;  as  when  those  in 
charge  of  the  respective  vessels  jointly  participate  in  their 
control  and  management,  and  the  master  or  crew  of  both 
vessels  are  either  deficient  in  skill,  omit  to  take  due  care, 
or  are  guilty  of  negligence  in  their  navigation.  Other  cases 
may  well  be  imagined  when  the  tow  alone  would  be  respon- 
sible, as  when  the  tug  is  employed  by  the  master  or  owner 
of  the  tow  as  the  mere  motive  power  to  propel  their  ves- 
sels from  one  point  to  another,  and  both  vessels  are  ex- 
clusively under  the  control,  direction,  and  management  of 
the  master  and  crew  of  the  tow.  Fault  in  that  state  of  the 
case  cannot  be  imputed  to  the  tug,  provided  she  was  prop- 
erly equipped  and  seaworthy  for  the  business  in  which  she 
was  engaged ;  and,  if  she  was  the  property  of  third  persons, 
her  owners  cannot  be  held  responsible  for  the  want  of  skill, 
negligence,  or  mismanagement  of  the  master  and  crew  of 
the  other  vessel,  for  the  reason  that  they  are  not  the  agents 
of  the  owners  of  the  tug,  and  her  owners  in  the  case  sup- 
posed do  not  sustain  towards  those  intrusted  with  the  nav- 
igation of  the  vessel  the  relation  of  the  principal.  But 
whenever  the  tug,  under  the  charge  of  her  own  master  and 
crew,  and  in  the  usual  and  ordinary  course  of  such  an  em- 
ployment, undertakes  to  transport  another  vessel,  which, 
for  the  time  being,  has  neither  her  master  nor  crew  on 
board,  from  one  point  to  another,  over  waters  where  such 
accessory  motive  power  is  necessary  or  usually  employed, 
she  must  be  held  responsible  for  the  proper  navigation  of 
both  vessels ;  and  third  persons,  suffering  damages  through 
the  fault  of  those  in  charge  of  the  vessel,  must,  under  such 
circumstances,  look  to  the  tug,  her  master  or  owners,  for 
the  recompense  which  they  are  entitled  to  claim  for  any  in- 
juries that  vessels  or  cargo  may  receive  by  such  means.  As- 
suming that  the  tug  is  a  suitable  vessel,  properly  manned 
and  equipped  for  the  undertaking,  so  that  no  degree  of  neg- 
ligence can  attach  to  the  owners  of  the  tow,  on  the  ground 
that  the  motive  power  employed  by  them  was  in  an  unsea- 


§§  58-59)  TOWAGE  V21 

worthy  condition,  and  the  tow,  under  the  circumstances 
supposed,  is  no  more  responsible  for  the  consequences  of  a 
collision  than  so  much  freight;  and  it  is  not  perceived 
that  it  can  make  any  difference  in  that  behalf  that  a  part, 
or  even  the  whole,  of  the  officers  and  crew  of  the  tow  are  on 
board,  provided  it  clearly  appears  that  the  tug  was  a  sea- 
worthy vessel,  properly  manned  and  equipped  for  the  en- 
terprise, and  from  the  nature  of  the  undertaking,  and  the 
usual  course  of  'conducting  it,  the  master  and  crew  of  the 
tow  were  not  expected  to  participate  in  the  navigation  of  the 
vessel,  and  were  not  guilty  of  any  negligence  or  omission  of 
duty  by  refraining  from  such  participation.  Vessels  en- 
gaged in  commerce  are  held  liable  for  damage  occasioned 
by  collision,  on  account  of  the  complicity,  direct  or  indirect, 
of  their  owners,  or  the  negligence,  want  of  care  or  skill,  on 
the  part  of  those  employed  in  their  navigation.  Owners 
appoint  the  master  and  employ  the  crew,  and  consequently 
are  held  responsible  for  their  conduct  in  the  management 
of  the  vessel.  Whenever,  therefore,  a  culpable  fault  is  com- 
mitted, whereby  a  collision  ensues,  that  fault  is  imputed  to 
the  owners,  and  the  vessel  is  just  as  much  liable  for  the  con- 
sequences as  if  it  had  been  committed  by  the  owner  him- 
self. No  such  consequences  follow,  however,  when  the  per- 
son committing  the  fault  does  not,  in  fact,  or  by  implica- 
tion of  law,  stand  in  the  relation  of  agent  to  the  owners. 
Unless  the  owner  and  the  person  or  persons  in  charge  of 
the  vessel  in  some  way  sustain  towards  each  other  the  re- 
lation of  principal  and  agent,  the  injured  party  cannot  have 
his  remedy  against  the  colliding  vessel.  By  employing  a 
tug  to  transport  their  vessel  from  one  point  to  another,  the 
owners  of  the  tow  do  not  necessarily  constitute  the  mas- 
ter and  crew  of  the  tug  their  agents  in  performing  the  serv- 
ice. They  neither  appoint  the  master  of  the  tug,  or  ship 
the  crew,  nor  can  they  displace  either  the  one  or  the  other. 
Their  contract  for  the  service,  even  though  it  was  nego- 
tiated with  the  master,  is  in  legal  contemplation  made  with 


128  stevedores'  contracts,  etc.  (Ch.  5 

the  owners  of  the  vessel,  and  the  master  of  the  tug,  not- 
withstanding the  contract  was  negotiated  with  him,  con- 
tinues to  be  the  agent  of  the  owners  of  his  own  vessel,  and 
they  are  responsible  for  his  acts  in  her  navigation." 

The  courts  hold  the  relation  between  tug  and  tow  to  re- 
semble that  between  the  hirer  and  driver  of  a  livery-stable 
carriage.  The  hirer  merely  designates  the  destination,  and 
as  the  driver  is  not  employed  or  selected  by  him,  but  by  the 
livery-stable  keeper,  the  hirer  is  not  liable  for  his  acts.17 

But  if  the  tow  is  the  dominant  mind,  and  the  tug  merely 
furnishes  the  motive  power  and  acts  under  the  tow's  orders, 
the  responsibility  would  be  upon  the  tow,  though  the  tug 
would  be  liable  for  its  own  negligence.18 

The  English  courts  are  inclined  to  regard  the  tug  as  the 
servant  of  the  tow,  and  to  hold  the  tow  liable  for  the  tug's 
negligence.19 

But  the  difference  between  the  American  and  English  de- 
cisions is  more  apparent  than  real.  The  statements  of  facts 
in  the  English  cases  show  that  it  is  the  usual  practice  in 
England  to  have  the  master  of  the  tow  direct  the  naviga- 
tion of  both  vessels.  In  such  case,  the  negligence  would 
be  that  of  the  tow  rather  than  the  tug;  and  so  the  English 
courts  have  settled  upon  the  doctrine  that  the  question 
whether  the  tug  is  the  agent  of  the  tow  or  an  independent 
contractor  is  a  question  dependent  upon  the  special  circum- 
stances of  each  case.20 

The  relative  duties  of  tug  and  tow  are  explained  in  DUT- 
TON  v.  THE  EXPRESS.21    If  the  tow  is  fastened  along- 

17  Quarman  v.  Burnett,  6  M.  &  W.  499. 

i«  In  re  Walsh,  136  Fed.  557,  G9  C.  C.  A.  267;  Degama,  150  Fed. 
323,  80  C.  C.  A.  93. 

>  '  Xiobe,  13  P.  D.  55;    Isca,  12  P.  D.  34. 

20  Quickstep,  15  P.  D.  196;  America,  L.  It.  6  P.  C.  127;  Smith 
v.  Towboat  Co.,  L.  R.  5  P.  C.  308;  Devonshire,  [1912]  A.  C.  634. 
Note  especially  the  discussion  of  the  American  and  English  deci- 
sions on  the  subject  in  Marsden  on  Collision  (7th  Ed.)  193  et  seq. 

213  Cliff.  462,  Fed.  Cas.  No.  4,209. 


§  60)  TOWAGE  129 

side  the  tug,  and  the  tug  has  full  charge  of  the  navigation, 
then  the  liability  for  a  collision  would  be  upon  the  tug.  If 
the  tow  is  towing  at  the  end  of  a  hawser,  the  liability  would 
be  upon  the  tug  if  the  tow  steered  properly,  and  would  be 
upon  the  tow  if  the  proximate  cause  of  the  collision  was  wild 
steering  on  her  part.  Even  if  she  was  steering  properly,  and 
the  tug  steered  her  into  danger,  she  would  be  responsible  to 
the  injured  vessel  if  by  changing  her  helm  or  taking  any  oth- 
er reasonable  precautions  she  could  avoid  the  consequences 
of  the  tug's  negligence,  for  it  would  be  her  duty  to  avoid 
collision  if  she  could  do  so.  It  is  also  the  duty  of  the  tow  to 
arrange  the  hawser  at  her  end.22 

The  tug  is  entitled  to  rely  upon  the  statement  of  the  tow 
as  to  the  draft  of  the  latter,  and  is  not  required  to  examine 
the  tow's  footmarks.23 

SAME— DEGREE  OF  CARE  REQUIRED  OF  TUG 

60.  A  tugboat  is  not  a  common  carrier,  and  is  liable  only 
for  lack  of  ordinary  care,  as  measured  by  prudent 
men  of  that  profession. 

There  are  some  early  decisions  to  the  effect  that  a  tug 
boat  is  a  common  carrier,  but  the  later  authorities  have  set- 
tled thoroughly  that  it  is  not,  but  only  an  ordinary  bailee, 
liable  for  ordinary  negligence.  It  is  also  settled  that  the 
occurrence  of  an  accident  raises  no  presumption  against  the 
tug,  and  that  the  burden  is  on  the  complaining  party  to 
prove  a  lack  of  ordinary  "care.24    At  the  same  time,  the  ordi- 

22  Isaac  H.  Tilly er  (D.  C.)  101  Fed.  47S ;  America,  42  C.  C.  A.  617, 
102  Fed.  767;  Virginia  Ehrinan,  97  U.  S.  309-315,  24  L.  Ed.  S90; 
Imperial  (D.  C.)  38  Fed.  614,  3  L.  R.  A.  234 ;  Pederson  v.  Spreckles, 
31  C.  C.  A.  30S,  87  Fed.  938 ;  Doris  (D.  C.)  108  Fed.  552 ;  Maurice, 
135  Fed.  516,  68  C.  C.  A.  228:  C.  W.  Mills  (D.  C.)  241  Fed.  204; 
Id.,  241  Fed.  37S,  154  C.  C.  A.  651. 

2  3  Coney  Island  (D.  C.)  115  Fed.  751;    Royal  (D.  C.)  13S  Fed.  416. 

§  60.  24  EASTERN  TRANSP.  LINE  v.  HOPE,  95  U.  S.  297,  24  L. 
Hughes,Adm.(2d  Ed.) — 9 


130  stevedores'  contracts,  etc.  (Ch.  5 

nary  care  required  of  those  engaged  in  the  profession  of 
towing  is  a  high  one,  for  they  hold  themselves  out  as  ex- 
perts. The  measure  of  care  required  is  similar  to  that 
required  of  pilots.    In  fact,  they  are  pilots.23 

As  an  expert,  a  tugboat  man  must  know  the  channel  and 
its  usual  currents  and  dangers,  and  the  proper  method  of 
making  up  tows.  He  is  liable  for  striking  upon  obstructions 
or  rocks  in  the  channel  which  ought  to  be  known  to  men 
experienced  in  its  navigation,  but  not  for  those  which  are 
unknown.26  He  is  required  to  have  such  knowledge  of 
weather  indications  as  experienced  men  of  his  class  are 
supposed  to  have,  though  it  would  not  be  negligence  in  him 
to  start  to  sea  with  his  tow  where  the  weather  bureau  pre- 
dicted good  weather.  Nor  would  it  be  negligence  to  start 
on  inland  navigation  merely  because  the  weather  bureau 
indicated  storms  at  sea.27 

A  tugboat  man  who  contracts  to  perform  a  service  im- 
pliedly warrants  that  his  tug  is  sufficiently  equipped  and 
efficient  to  perform  the  service,  though  he  would  not  be  lia- 
ble for  any  breakdown  arising  from  causes  which  ordinary 
care  could  not  have  discovered  and  prevented.28 

Ed.  477 ;  Atlantic  City,  241  Fed.  62,  154  C.  C.  A.  62 ;  Kunkle  Bros. 
(D.  C.)  211  Fed.  540. 

25  Margaret,  94  U.  S.  494,  24  L.  Ed.  146:  Mount  Hope,  29  C.  C.  A. 
365,  84  Fed.  910;  Syracuse  (D.  C.)  84  Fed.  1005;  Somers  N.  Smith 
(D.  C.)  120  Fed.  569 ;  Consolidated  Coal  Co.  v.  Knickerbocker  Steam 
Towage  Co.  (D.  C.)  200  Fed.  840. 

20  Ashbourne  (D.  C.)  206  Fed.  S61 ;  Louisa  (D.  C.)  209  Fed.  1001; 
215  Fed.  92,  131  C.  C.  A.  400;  Mason,  249  Fed.  718,  KJ1  C.  C.  A. 
628;  Westerly,  249  Fed.  93S,  162  C.  C.  A.  130 ;  Cray's  Harbor  Tug- 
boat Co.  v.  Petersen,  250  Fed.  956,  163  C.  C.  A.  206. 

21  Victoria,  37  C.  C.  A.  40,  95  Fed.  1S4 ;  William  H.  Yerkes,  Jr. 
(D.  C.)  214  Fed.  881 ;  May  McGuirl  (D.  C.)  215  Fed.  805 ;  Salutation 
(D.  C.)  239  IV, l.  421. 

28  Undaunted,  11  P.  D.  46;  Ratata,  [1898]  A.  C.  513;  Charles  B. 
Sandford,  204  Fed.  77,  122  C.  C.  A.  391  :  Enterprise  (D.  C.)  228  Fed. 
i:;i  ;   Ooleman  v.  Aiken,  242  Fed.  239,  155  C.  C.  A.  79. 


§  61)  TOWAGE  131 


SAME—FOR  WHOSE  ACTS  TUG  OR  TOW  LIABLE 

61.  A  tug  and  tow  are  liable,  either  in  contract  or  in  tort, 
only  for  the  acts  and  defaults  of  those  who  are  the 
lawful  agents  or  representatives  of  their  owners. 

Hence,  if  a  charterer  employs  a  tug  to  tow  his  vessel  and 
under  the  terms  of  the  charter  party  he  has  no  right  to  bind 
the  vessel  for  such  contracts  and  this  is  known  to  the  party 
dealing  with  him,  the  vessel  would  not  be  liable  for  the  tow 
bill.  So,  too,  if  the  tug  at  the  time  is  in  the  hands  of  parties 
who  have  no  right  to  her  use,  she  would  not  be  liable  in 
rem  for  torts  committed  or  contracts  made  by  them.29 

A  towage  contract  is  pre-eminently  maritime,  and  may  be 
enforced  against  the  tug  or  tow.30 

The  better  opinion  is  that  a  towage  service  is  not  a  nec- 
essary in  the  sense  in  which  that  word  is  used  when  the 
rights  of  material  men  are  under  consideration,  and  does 
not  depend  upon  state  or  federal  statutes  for  its  existence, 
but  is  a  distinct  class  of  marine  service.31 

§  61.  2  9  Mary  A.  Tryon  (D.  C.)  93  Fed.  220;  Tasmania,  13  P.  D. 
110;  Anne,  1  Mason,  508,  Fed.  Cas.  No.  412:  Clarita,  23  Wall.  11, 
23  L.  Ed.  146 ;    J.  Doherty  (D.  C.)  207  Fed.  907. 

so  Ward  v.  Banner,  Fed.  Cas.  No.  17,149;  Williams,  1  Brown, 
Adm.  208,  Fed.  Cas.  No.  17,710;  Erastina  (D.  C.)  50  Fed.  126; 
Knapp,  Stout  &  Co.  Company  v.  McCaffrey,  177  U.  S.  638,  20  Sup.  Ct. 
824,  44  L.  Ed.  921;  Holthe  (D.  C.)  249  Fed.  783;  Energy,  L.  R.  3 
A.  &  E.  4S;  International  (C.  C,  A.)  256  Fed.  192  (failure  of  tug 
to  come  to  aid  of  signaling  vessel  entitled  to  her  services  gives  suit 
in  personam,  not  in  rem). 

3i  J.  Doherty  (D.  C.)  207  Fed.  997;  Hatteras,  255  Fed.  518,  166  O. 
C.  A.  586.     Ante,  p.  108. 


132  SALVAGE  (Ch.  6 

CHAPTER  VI 

OF  SALVAGE 

62.  Nature  and  Grounds. 

63.  "Salvage"  Defined — Elements  of  Service. 

64.  The  Award — Amount  in  General. 

65.  Elements  of  Compensation  and  Bounty. 

66.  Incidents  of  the  Service. 

67.  Salvage  Contracts. 

68.  Salvage  Apportionment. 

69.  Salvage  Chargeable  as  between  Ship  and  Cargo. 

NATURE  AND   GROUNDS 

62.  Salvage  is  peculiarly  maritime  in  its  nature.  It  is 
awarded  on  grounds  of  public  policy,  and  is  inde- 
pendent of  contract. 

This  is  one  of  the  most  interesting  branches  of  marine 
jurisprudence.  It  is  more  purely  maritime  in  its  nature 
than  any  heretofore  discussed.  It  finds  no  analogy  in  the 
common  law,  nor,  indeed,  as  far  as  procedure  is  concerned, 
in  the  chancery  law,  though  it  largely  partakes  of  equitable 
principles  in  its  administration.  Both  the  common-law  and 
chancery  courts  enforce  rights  of  positive  obligation  aris- 
ing either  from  contract  or  from  a  violation  of  some  binding 
duty  which  one  man  owes  to  another  in  the  organization  of 
modern  society.  Duties  of  imperfect  obligation  appeal  in 
vain  to  those  courts. 

But  the  right  of  salvage  depends  on  no  contract.  A  sal- 
vor who  rescues  valuable  ships  or  cargoes  from  the  grasp  of 
wind  and  wave,  the  embrace  of  rocky  ledges  or  the  devour- 
ing flame,  need  prove  no  bargain  with  its  owner  as  the 
basis  of  recovering  a  reward.  He  is  paid  by  the  courts 
from   motives   of   public   policy — paid    not    merely    for   the 


§  62  NATURE  AND  GROUNDS  133 

value  of  his  time  and  labor  in  the  special  case,  but  a  bounty 
in  addition,  so  that  he  may  be  encouraged  to  do  the  like 
again. 

In  an  early  case  Chief  Justice  Marshall  contrasted  the 
doctrines  of  the  common-law  and  marine  courts  on  the 
subject:  "If  the  property  of  an  individual  on  land  be  ex- 
posed to  the  greatest  peril,  and  be  saved  by  the  voluntary 
exertions  of  any  person  whatever,  if  valuable  goods  be  res- 
cued from  a  house  in  flames,  at  the  imminent  hazard  of  life, 
by  the  salvor,  no  remuneration  in  the  shape  of  salvage  is 
allowed.  The  act  is  highly  meritorious,  and  the  service  is 
as  great  as  if  rendered  at  sea,  yet  the  claim  for  salvage  could 
not  perhaps  be  supported.  It  is  certainly  not  made.  Let 
precisely  the  same  service,  at  precisely  the  same  hazard,  be 
rendered  at  sea,  and  a  very  ample  reward  will  be  bestowed 
in  the  courts  of  justice.'' x  This  same  comparison  is  made 
in  the  interesting  English  case  of  Falcke  v.  Insurance  Co.2 

While  salvage  does  not  necessarily  spring  from  contract, 
it  may  do  so,  and  in  fact  usually  does  so ;  the  most  frequent 
instances  to  the  contrary  being  services  to  derelicts.  In 
modern  times  the  greater  use  of  steamers  and  better  meth- 
ods of  construction  render  these  cases  rare,  and  make  nearly 
all  the  cases  with  which  we  have  to  deal  spring  from  con- 
tract. Hence  salvage  is  classified  in  this  treatise  under  con- 
tract rights,  sacrificing  logic  to  convenience. 

These  contracts,  as  in  other  branches  of  the  law,  may  be 
express  or  implied.  A  service  rendered  to  a  distressed  ves- 
sel  with  the   acquiescence  of   those   in   charge   implies   an 

§  62.     i  Blaireau,  2  Cranch,  240,  2  L.  Ed.  266. 

2  34  Ch.  D.  234.  The  origin  and  early  history  of  the  law  of  salvage 
may  be  found  in  Lord  Hale's  tract  De  Jure  Maris  (Hall  on  Sea- 
shore [2d  Ed.]  Appx.  xxxvii),  the  essay  of  Mr.  Mears  on  the  Ad- 
miralty Jurisdiction  reprinted  in  2  Select  Essays  in  Anglo-American 
Legal  History,  331,  note,  and  in  Mr.  Marsden's  Introduction  to  2 
Select  Pleas  in  Admiralty  (published  by  the  Selden  Society)  xxr 
et  seq. 


134  SALVAGE  (Ch.  6 

agreement  for  payment  therefor,  though  not  a  word  is  said 
about  price.3 

"SALVAGE"   DEFINED— ELEMENTS   OF   SERVICE 

63.  Salvage  is  the  reward  allowed  for  a  service  rendered  to 
marine  property,  at  risk  or  in  distress,  by  those  un- 
der no  obligation  (independent  of  statute)  to  render 
it,  which  results  in  benefit  to  the  property  if  even- 
tually saved. 

"A  Service  Rendered" 

Space  forbids  the  enumeration  of  all  services  that  have 
been  held  by  the  courts  to  be  included  in  these  words.  The 
following  may  be  named  rather  as  illustrations  than  as  a 
catalogue : 

(1)  Towage  of  disabled  vessels.4 

(2)  Piloting  or  navigating  endangered  ships  to  safety.5 

(3)  Removing  persons  or  cargo  from  endangered  vessel.0 

(4)  Saving  a  stranded  ship  and  cargo.7 

(5)  Raising  a  sunken  ship  or  cargo.8 

3  Gould  v.  U.  S.,  1  Ct.  CI.  184 ;  Bryan  v.  U.  S.,  6  Ct.  01.  128 ; 
Potomac  Steamboat  Co.  v.  Baker  Salvage  Co.,  123  U.  S.  40,  8  Sup.  Ct. 
33,  31  L.  Ed.  75.  Compare  U.  S.  v.  Cornell  Steamboat  Co.,  202  U. 
S.  184,  26  Sup.  Ct.  648,  50  L.  Ed.  9S7. 

§  63.  *  AKABA,  54  Fed.  197,  4  C.  C.  A.  281 ;  Blake  v.  Baltimore  & 
C.  S.  S.  Co.  of  Baltimore  City,  211  Fed.  116,  128  C.  C.  A.  577; 
Roanoke,  214  Fed.  63,  130  C.  C.  A.  503 ;  Adelaide  T.  Carleton  (D.  C.) 
215  Fed.  932 ;    Antilla  (D.  C.)  245  Fed.  973. 

6  Anna,  6  Ben.  166,  Fed.  Cas.  No.  398 ;  Alamo,  75  Fed.  602,  21  C. 
C.  A.  451 ;    J.  L.  Bowen,  5  Ben.  296,  Fed.  Cas.  No.  7,322. 

«  John  Wesley,  Fed.  Cas.  No.  7,433;  Sir  William  Armstrong  (D.  C.) 
53  Fed.  145. 

r  Sandrlngham  (D.  C.)  10  Fed.  556;  Kimberley  (D.  C.)  40  Fed. 
289;  St.  Charles  (D.  C.)  254  Fed.  509;  Teresa  Accama  (IX  0.)  254 
Fed.  0;',7;    Kia  Ora,  252  Fed.  507,  164  C.  C.  A.  423. 

s  Camanehe,  8  Wall.  448,  19  L.  Ed.  397 ;  Eads  v.  II.  D.  Bacon,  1 
Newb.  274,  Fed.  Cas.  No.  4,232;  Isaac  Allcrton,  Fed.  Cas.  No.  7,088; 
Silver  Star  (1).  C.)  207  Fed.  600. 


§  63)       "salvage"  defined — ELEMENTS  of  service         135 

(6)  Saving  a  derelict  or  wreck.9 

(7)  Taking  aid  to  a  distressed  ship  or  information  for  her 
to  port.10 

(8)  Saving  people  in  boats  of  distressed  ship.11' 

(9)  Protecting  ship,  cargo,  or  persons  aboard  from  pi- 
rates or  wreckers.12 

(10)  Furnishing  men  or  necessary  supplies  or  appurte- 
nances to  a  ship  which  is  short  of  them.13 

(11)  Saving  a  ship,  cargo,  or  persons  aboard  from  fire 
either  aboard  or  in  dangerous  proximity.14 

(12)  Standing  by  a  distressed  ship.15 

(13)  Removing  a  ship  from  an  ice  floe  or  any  impending 
danger.1'6 

"To>  Marine  Property" 

It  is  difficult  to  understand  why  the  motives  of  public 
policy  on  which  the  law  of  salvage  is  based  do  not  apply  to 
the  rescue  of  any  property  in  danger  on  navigable  waters, 
whether  such  property  ever  formed  part  of  a  vessel  or  cargo 
or  not.  If,  for  instance,  a  passenger  on  a  train  crossing  a 

9  Janet  Court,  [1897]  P.  59;  Thomas  W.  Haven  (D.  O.)  48 
Fed.  842  ;  Fisher  v.  Sybil,  5  Hughes,  61,  Fed.  Cas.  No.  4,824 ;  Sprague 
v.  140  Barrels  of  Flour,  2  Story,  195,  Fed.  Cas.  No.  13,253. 

io  Undaunted,  Lush.  90;  Marguerite  Molinas  (1903)  P.  160;  Flott- 
bek,  US  Fed.  954,  55  C.  C.  A.  448. 

ii  Cairo,  L.  E.  4  A.  &  E.  184. 

12  Porter  v.  Friendship,  Fed.  Cas.  No.  10,783. 

is  Butterworth  v.  Washington,  Fed.  Cas.  No.  2,253;  Lamar  v. 
Penelope,  Fed.  Cas.  No.  8,007;  F.  I.  Merryman  (D.  C.)  27  Fed.  313; 
.F:olus,  L.  R.  4  A.  &  E.  29. 

i*  BLACKWALL,  10  Wall.  1,  19  L.  Ed.  870;  Lydia  (D.  C.)  49  Fed. 
666;  Boyne  (D.  C.)  98  Fed.  444;  Connemara,  10S  U.  S.  352,  2  Sup. 
Ct.  754,  27  L.  Ed.  751 ;  J.  M.  Guffey  Petroleum  Co.  v.  Borison,  211 
Fed.  594,  128  C.  C.  A.  194;    Alice,  244  Fed.  415,  157  C.  C.  A.  41. 

is  Maude,  3  Asp.  338;  Allen  v.  Canada,  1  Bee,  90,  Fed.  Cas.  No. 
219. 

is  Adams  v.  Island  City,  1  Cliff.  210,  Fed.  Cas.  No.  55;  Staten 
Island  &  N.  Y.  Ferry  Co.  v.  Thomas  Hunt,  Fed.  Cas.  No.  13,326; 
In  re  50,000  Feet  of  Timber,  2  Low.  64,  Fed.  Cas.  No.  4,783. 


136  SALVAGE  (Ch.  6 

bridge  should  drop  a  bag  of  gold  or  a  valuable  jewel  case 
into  a  navigable  stream,  the  salvor  should  be  as  much  en- 
titled to  a  reward  as  if  it  had  been  dropped  from  the  deck  of 
a  steamer.  But  in  view  of  the  decision  of  the  Supreme  Court 
in  COPE  v.  VALLETTE  DRY-DOCK  CO.  OF  NEW 
ORLEANS,17  and  the  decision  of  the  House  of  Lords  in  the 
Gas  Float  Whitton  Case,1'8  it  is  a  matter  of  great  doubt 
whether  salvage  can  be  claimed  against  anything  not  con- 
nected in  some  way  with  a  vessel  of  some  character.19 

But  if  the  subject  of  the  salvage  service  is  a  ship  or 
something  connected  therewith,  its  maritime  character  is 
not  affected  by  the  fact  that  it  is  not  rendered  on  the  wa- 
ter. Hence  such  service  rendered  to  a  vessel  in  a  dry  dock, 
whether  the  dock  at  the  time  has  been  pumped  dry  or  not, 
comes  under  this  doctrine.20 

"At  Risk  or  in  Distress" 

This  does  not  imply  actual,  imminent  danger.  It  is  a  sal- 
vage service  if  the  vessel  is  in  such  a  condition  as  to  be  in 
need  of  assistance,  though  no  immediate  danger  threatens. 
The  test  is  thus  defined  by  Dr.  Lushington  :  "All  services 
rendered  at  sea  to  a  vessel  in  distress  are  salvage  services. 
It  is  not  necessary,  I  conceive,  that  the  distress  should  be 
immediate  and  absolute ;  it  will  be  sufficient  if,  at  the  time 
the  service  is  rendered,  the  vessel  has  encountered  any  dam- 

17  119  U.  S.  625,  7  Sup.  Ct.  336,  30  L.  Ed.  501. 

is  [1897]  A.  C.  337. 

i»  See  the  discussion  of  this  subject  ante.  p.  14.  Among  the  sub- 
jects considered  at  the  inquisitions  of  the  Cinque  Ports  Admiralty 
as  far  back  as  the  loth  century  was:  "That  A.  B.  found  floating 
upon  the  sea  'unam  marinam  piscem  vocatam  whale  or  purpeys. 
*  *  *  '  That  A.  B.  found  floating  upon  the  sea  a  dead  man,  and 
on  him  some  money."     2  Select  Pleas  in  Admiralty,  xxviii. 

20  Jefferson,  215  U.  S.  130,  30  Sup.  Ct.  54,  54  L.  Ed.  125,  17  Ann. 
Cas.  907;  Neshamlny  (D.  C.)  220  Fed.  182;  Id..  228  Fed.  285,  1  12  C. 
C.  A.  577;  Gulfport  (D.  C.)  243  Fed.  676;  Id.,  250  Fed.  577,  162  G 
C.  A.  593. 


§  63)      "salvage"  defined — ELEMENTS  of  service  137 

age  or  misfortune  which  might  possibly  expose  her  to  de- 
struction if  the  services  were  not  rendered."  21 

Accordingly,  in  the  Albion,22  a  tug  was  allowed  a  salvage 
reward  for  bringing  in  a  ship  which  had  inadequate  ground 
tackle,  though  no  immediate  storm  threatened.  And  in  the 
Ellora,23  under  similar  weather  conditions,  salvage  was  al- 
lowed for  bringing  in  a  steamer  which  had  lost  her  crew, 
though  she  was  fully  rigged  with  sails. 

The  hoisting  of  a  signal  for  help  is  evidence  that  help  is 
needed.24 

"By  Those  under  No  Obligation  to  the  Vessel  to  Render  It" 
This  is  usually  briefly  expressed  in  the  books  by  speaking 
of  salvage  as  a  service  "voluntarily  rendered,"  and  is  meant 
to  exclude  services  rendered  by  those  under  some  contrac- 
tual or  binding  obligation.25  Hence,  as  a  rule,  the  crew  of 
the  distressed  vessel  cannot  claim  salvage,  for  that  is  a  part 
of  their  duty.  Nor  can  her  pilot,  for  the  same  reason.  Nor 
can  the  tug  towing  her,  under  ordinary  circumstances,  for 
that  is  a  part  of  the  contract  of  towage.  Nor  can  a  passen- 
ger, for  he  is  working  as  much  to  save  himself  as  to  save  the 
vessel.  Nor  can  the  life-saving  crews,  for  they  are  paid  to 
do  that  very  work. 

Independent  of  statute,  there  was  no  obligation  beyond 
a  moral  one  upon  any  other  vessel  to  render  aid  to  vessels 
in  distress.  But  on  August  1,  1912,  an  act  was  passed,  the 
second  section  of  which  made  it  obligatory  to  render  aid  as 
far  as  necessary  to  protect  human  life,  and  as  far  as  can 

2i  Charlotte,  3  W.  Rob.  68.  See,  also,  Calyx,  27  T.  L.  R.  166; 
Rambler,  [1917]  2  Ir.  406;  Hekla  (D.  C.)  62  Fed.  941;  Urko  Mendi 
(D.  C.)  216  Fed.  427. 

22  Lush.  2S2. 

2  3  Lush.  550. 

24  m.  B.  Stetson,  Fed.  Cas.  No.  9,363;  Mira  A.  Pratt  (D.  C.)  31 
Fed.  572. 

25  Fannie  Brown  (D.  C.)  30  Fed.  215. 


138  SALVAGE  (Ch.  6 

be  done  without  serious  danger  to  the  salving  vessel,  her 
crew  or  passengers.26 

Hence  the  old  expression  in  the  books  "by  those  under 
no  legal  obligation  to  render  it,"  is  to  that  extent  modified. 

There  are  circumstances  under  which  these  different 
classes  may  claim  salvage,  but  an  examination  will  show 
that,  so  far  from  weakening  the  general  rule  above  stated, 
these  circumstances  emphasize  and  confirm  it. 

Same — The  Crew 

The  reason  why  they  cannot  ask  salvage  is  that  they  are 
but  fulfilling  their  contract  of  hiring  when  they  work  to 
save  their  ship.  Hence,  after  the  dissolution  of  such  con- 
tract, they  are  free  to  claim  it.  Accordingly,  in  the  War- 
rior,27 where  a  ship  had  gone  aground  and  her  master  took 
his  crew  ashore  and  discharged  them,  some  of  the  crew  who 
came  back  subsequently,  and  saved  much  of  her  stores  and 
cargo,  were  allowed  to  claim  salvage. 

In  the  Florence,28  the  master  abandoned  his  vessel  at  sea 
and  took  the  crew  ashore.  Some  of  them  returned  to  the 
wreck  in  another  vessel,  and  assisted  in  saving  the  Flor- 
ence.   They  were  held  entitled  to  salvage. 

In  the  Le  Jonet,29  all  the  crew  but  the  mate  left  the  ves- 
sel, which  had  been  injured  in  collision.  He  remained 
aboard,  hoisted  signals  of  distress,  and  secured  thereby  the 
aid  of  a  steamer,  which  took  her  into  port.  He  was  awarded 
salvage. 

26  37  Stat.  242  (U.  S.  Comp.  St.  §  7091),  Appx.  425. 

27  Lush.  476. 

2  8  16  Jur.  572. 

2»  L.  R.  3  A.  &  E.  556.  See,  on  the  general  subject,  C.  F.  Biel- 
inan  (D.  C.)  108  Fed.  878;  Gilbraith  v.  Stewart  Transp.  Co..  121  Fed. 
540,  57  C.  C.  A.  602,  til  L.  R.  A.  193;  Comet  (D.  C.)  205  Fed.  991  ; 
Zapora  (D.  C.)  205  Fed.  1004;  Georgiana,  245  Fed.  321,  157  C.  C.  A. 
513. 


§  63)      "salvage"  defined — ELEMENTS  op  service  139 

Same — The  Pilot 

A  pilot  cannot  claim  salvage  for  ordinary  pilotage  serv- 
ices, as  they  are  covered  by  his  pilot's  fee.  If,  however,  he 
does  work  outside  the  duties  of  a  pilot,  like  working  at  the 
pumps  or  laying  anchors  and  cables,  he  may  claim  as  salvor. 
Perhaps  the  best  expression  of  the  principle  is  Dr.  Lush- 
ington's  remarks  in  the  Saratoga  :30  "In  order  to  entitle  a 
pilot  to  salvage  reward,  he  must  not  only  show  that  the  ship 
is  in  some  sense  in  distress,  but  that  she  was  in  such  dis- 
tress as  to  be  in  danger  of  being  lost,  and  such  as  to  call  upon 
him  to  run  such  unusual  danger,  or  incur  such  unusual 
responsibility,  or  exercise  such  unusual  skill,  or  perform 
such  an  unusual  kind  of  service,  as  to  make  it  unfair  and 
unjust  that  he  should  be  paid  otherwise  than  upon  the  terms 
of  salvage  reward." 

An  important  case  on  the  subject  is  Akerblom  v.  Price.31 
The  awards  to  state  pilots,  however,  are  moderate  from 
motives  of  public  policy,  and  the  temptation  which  high 
awards  might  offer.32 

Same — The  Tug 

Under  the  head  of  towage,  the  circumstances  under  which 
a  towage  contract  may  be  turned  into  a  salvage  service  not 
contemplated  by  the  original  contract  have  already  been 
discussed.    Ante,  p.  124,  c.  5,  §  57. 

Same — Passengers 

Services  rendered  by  a  passenger  in  common  with  others 
can  give  no  claim  to  salvage,  as  he  is  working  for  that  self- 
preservation  which  is  the  first  law  of  nature.  But  when  he 
has  an  opportunity  of  saving  himself,  and  stays  by  the  ship 
instead  of  embracing  such  opportunity,  his  situation  is  an- 


30  Lush.  31S. 

317  Q.   B.   D.  129.     See,  also,   Monarch,   12  P.  D.   5 ;    Bedeburn, 
[1914]  P.  146,  30  T.  L.  R.  513. 
32  Relief  (D.  C.)  51  Fed.  252. 


140  SALVAGE  (Ch.  6 

alogous  to  the  crew  after  the  dissolution  of  their  relation  to 
the  ship,  and  he  may  earn  salvage.33 

So,  too,  a  passenger  who  renders  special  services  differ- 
ent from  the  rest  of  those  aboard,  as  one  who  rigged  up  an 
ingenious  steering  apparatus  for  a  disabled  vessel,  was 
awarded  salvage  in  Towle  v.  Great  Eastern,34  though  this 
is  nearer  the  border  line,  and  is  hard  to  reconcile  with  the 
decision  of  Lord  Stowell  in  the  leading  case  of  the  BRAN- 
STON.35 

Same — Government  Employes 

These  cannot  claim  salvage  for  acts  done  as  part  of  their 
public  duties,  as  when  the  life-savers  remove  a  crew  or  their 
property  from  a  wreck,  or  a  vessel  of  the  navy  suppresses 
a  mutiny  on  a  merchant  vessel.  But  the  better  opinion  is 
that  they  may  claim  for  services  outside  their  regular  duties. 
For  instance,  in  the  Cargo  of  the  Ulysses,38  men  from  a 
vessel  of  the  royal  navy  were  refused  salvage  for  protecting 
a  wreck  from  plunderers,  but  allowed  it  for  work  in  remov- 
ing cargo. 

Parties  Responsible  for  the  Peril 

Those  identified  with  a  vessel  which  has  caused  the  dan- 
ger by  a  careless  collision  can  not  claim  salvage.37 

"Which    Results   m   Benefit    to    the    Property    if   Eventually 
Saved" 
It  is  usually  said  that  success  is  essential  to  constitute  a 
salvage  service ;   for  unless  the  property  is  saved  it  is  not 

as  Newman  v.  Walters,  3  Bos.  &  P.  612. 

34  Fed.  Cas.  No.  14.110.  In  Connemara,  108  U.  S.  352,  2  Sup.  Ct. 
754,  27  L.  Ed.  751,  a  passenger  was  allowed  salvage  for  first  dis- 
covering a  fire  and  then  for  extraordinary  services  in  the  handling 
of  the  steam  pump  and  hose. 

30  2  Hagg.  Ad.  3,  note;  Candee  v.  68  Bales  of  Cotton  (D.  C.)  4S 
Fed.  47'.). 

36  13  p.  D.  205.  See,  also,  Cayo  Bonito,  [1904]  P.  310;  Sarpen, 
[1916]  P.  306;   Carrie,  [1917]  P.  224. 

BTClarita,  23  Wall.  1,  23  L.  Ed.  14G;  Noreuga  (D.  C.)  211  Fed. 
355;    Due  d'Aumale,  [1904]  P.  GO. 


§  63)      "salvage"  defined — ELEMENTS  op  service  141 

a  service,  as  a  benefit  actually  conferred  is  thevery  founda- 
tion. A  salvor  may  find  a  ship  a  thousand  miles  at  sea,  but 
if  he  loses  her  at  the  very  harbor  bar  he  forfeits  his  claim ; 
for  he  has  conferred  no  benefit  upon  her  or  her  owners.38 

Hence  salvage  awards  are  made  sufficiently  liberal  to  pay 
not  only  for  the  special  service,  but  to  encourage  salvors  to 
undertake  other  enterprises  not  so  promising.  And  there- 
fore salvors  who  do  not  complete  their  job  can  claim  noth- 
ing if  the  vessel  is  subsequently  rescued  by  other  salvors, 
unless  their  efforts  result  in  placing  the  vessel  in  a  better 
position,  and  thereby  facilitating  the  work  of  subsequent 
salvors. 

For  instance,  in  the  KILLEENA,39  a  vessel  put  five  of 
her  crew  aboard  the  Killeena,  which  was  a  derelict,  to  bring 
her  into  port.  After  a  few  days,  they  had  enough  of  it,  and 
were  taken  aboard  another  vessel  at  their  own  request. 
The  second  vessel  then  put  some  of  her  crew  aboard,  and 
took  her  in  tow  until  the  rope  broke.  The  second  crew 
secured  the  assistance  of  a  steamer,  stuck  by  the  derelict, 
and  brought  her  in.  The  first  set  were  refused  salvage,  but 
the  others  were  allowed  it. 

In  the  Camellia,40  a  steamer  towed  the  Camellia  for  half 
a  day,  and  then  had  to  leave  her.  But  she  had  towed  her  85 
miles  nearer  to  port,  and  about  12  miles  nearer  her  course, 
thus  giving  her  a  better  position.  The  Camellia  reached 
port,  and  the  Victoria  was  allowed  a  small  sum  as  salvage. 

An  indirect  service  to  a  second  vessel  by  towing  away 
from  her  vicinity  a  vessel  in  peril  and  to  which  the  direct 
service  is  being  rendered  does  not  give  any  claim  against 
the  second  vessel.41 

38  Sabine,  101  U.  S.  384,  25  L.  Ed.  982;  Connemara,  108  U.  S.  352, 
2  Sup.  Ct.  754,  27  L.  Ed.  751. 

so  6  P.  D.  193. 

409  P.  D.  27.  See,  also,  August  Korff,  [1903]  P.  166;  I.  W.  Nich- 
olas (D.  C.)  147  Fed.  793 ;   City  of  Puebla  (D.  C.)  153  Fed.  925. 

41  Thomas  Hilyard  (D.  C.)  55  Fed.  1015;  City  of  Columbia  (D.  C.) 
56  Fed.  252 ;    San  Cristobal,  230  Fed.  599,  144  C.  C.  A.  653. 


142  SALVAGE  (Ch.  6 

THE  AWARD— AMOUNT  IN  GENERAL 

64.  The  amount  of  a  salvage  award  varies   according  to 

the  character  and  skill  of  the  salvors,  the  locality, 
the  inducements  necessary  to  encourage  the  serv- 
ice, the  value  of  the  property  saved  or  of  the  salvor's 
property  at  risk,  the  danger  to  salvors  and  saved, 
the  skill  and  labor  involved,  and  the  degree  of  suc- 
cess achieved. 

Having  discussed  the  general  nature  of  salvage,  the  ques- 
tion of  degree  must  now  be  considered,  and  the  circum- 
stances which  swell  or  reduce  the  award. 

From  a  simple  service  that  is  salvage  only  in  name,  to 
those  acts  of  heroism  whose  bare  recital  quickens  the  pulse, 
the  range  is  immense.  Hence  no  rule  can  be  laid  down  by 
which  a  salvage  service  can  be  measured  accurately.  Each 
case  has  its  peculiar  circumstances,  and  the  amount  of  a 
salvage  award  is  largely  a  matter  of  judicial  discretion, 
varying  with  the  idiosyncrasies  of  the  judge,  and  regulated 
only  by  certain  general  rules.  These  are  largely  corollaries 
from  the  fundamental  doctrine  that  salvage  is  the  out- 
growth of  an  enlightened  public  policy,  and  is  awarded,  not 
merely  on  a  niggardly  calculation  pro  opere  et  labore  in  the 
special  case,  but  as  an  encouragement  to  induce  the  salvor 
and  future  salvors  to  incur  risk  in  saving  life  and  property. 

SAME— ELEMENTS  OF  COMPENSATION  AND 
BOUNTY 

65.  A  salvage  award  consists  of  two  elements: 

(a)  Compensation  for  actual  outlay  and  expenses  made 

in  the  enterprise. 

(b)  The  reward  as  bounty,  allowed  from  motives  of  pub- 

lic policy  as  a  means  of  encouraging  extraordinary 
exertions  in  the  saving  of  life  and  property. 


§  65)  THE    AWARD  143 

The  first  of  these  items  is  practically  a  constant  quantity ; 
as  a  salvor,  if  his  service  is  important,  is  always  entitled,  at 
least,  to  be  repaid  his  expenses  and  to  be  paid  for  his  labor. 

The  second  element  of  salvage,  or  the  bounty  element,  is 
the  variable  quantity  in  salvage  awards.  Being  given  on 
motives  of  public  policy,  it  is  more  or  less  according  to  the 
merits  of  the  service  and  the  ability  of  the  owners  to  con- 
tribute out  of  the  funds  saved.42 

The  element  of  expense  is  always  considered  by  the  court, 
and  usually  allowed  specifically,  but  not  necessarily  so.  On 
this  subject  the  House  of  Lords,  in  the  DE  BAY,43  says  :  "It 
was  contended  that  some  of  these  items  ought  not  to  be 
taken  into  consideration  at  all,  as,  for  instance,  the  loss  on 
charter;  and  it  was  further  contended  that  in  no  case  ought 
the  items  of  loss  or  damage  to  the  salving  vessel  be  allowed 
as  'moneys  numbered,'  but  that  they  should  only  be  gener- 
ally taken  into  account  when  estimating  the  amount  to  be 
awarded  for  salvage  remuneration.  Their  lordships  are  of 
opinion  that  this  objection  is  not  well  founded.  It  was  ar- 
gued that  by  allowing  the  several  items  of  the  account,  and 
then  a  further  sum  for  salvage,  the  salvors  would  receive 
payment  for  their  losses  twice  over;  but  this  is  only  on  the 
supposition  that  the  court  below,  after  giving  the  amount 
of  the  alleged  losses  specifically,  has  considered  them  again 
generally  in  awarding  £5,000  for  simple  salvage  services.  It 
is  not  to  be  presumed  that  the  learned  judge  has  fallen  into 
such  an  error,  and,  indeed,  it  appears  that  he  has  not  done 
so,  but  that  he  considered  the  £5,000  a  reasonable  amount 
for  salvage  reward,  wholly  irrespective  of  damage  and 
expenses.  Their  lordships  are  of  opinion  that  it  is  al- 
ways  justifiable,   and    sometimes   important,    when    it   can 

§  65.     42  Egypt  (D.  C)   17  Fed.  359:    Pleasure  Bay  (D.  C.)  226 
Fed.  55. 

43  8  A.  C.  559.  See,  also,  Fairport,  [1912]  P.  168 ;  Angele,  [1901] 
A.  C.  549;   Pelican  (D.  C.)  15S  Fed.  183. 


144  SALVAGE  (Ch.  6 

be  done,  to  ascertain  what  damages  and  losses  the  salv- 
ing vessel  has  sustained  in  rendering  the  salvage  service. 
It  is  frequently  difficult  and  expensive,  and  sometimes  im- 
possible, to  ascertain  with  exactness  the  amount  of  such 
loss,  and  in  such  case  the  amount  of  salvage  must  be  as- 
sessed in  a  general  manner,  upon  so  liberal  a  scale  as  to 
cover  the  losses,  and  to  afford  also  an  adequate  reward 
for  the  services  rendered.  In  the  assessment  of  salvage 
regard  must  always  be  had  to  the  question  whether  the 
property  saved  is  of  sufficient  value  to  supply  a  fund  for 
the  due  reward  of  the  salvors,  without  depriving  the  own- 
er of  that  benefit  which  it  is  the  object  of  the  salvage 
services  to  secure  him.  If,  as  in  the  present  case,  the  fund 
is  ample,  it  is  but  just  that  the  losses  voluntarily  incurred 
by  the  salvor  should  be  transferred  to  the  owner  of  the  prop- 
erty saved,  for  whose  advantage  the  sacrifice  has  been  made, 
and,  in  addition  to  this,  the  salvor  should  receive  a  compen- 
sation for  this  exertion  and  for  the  risk  he  runs  of  not  re- 
ceiving any  compensation  in  the  event  of  his  services  prov- 
ing ineffectual ;  for,  if  no  more  than  a  restitutio  in  integrum 
were  awarded,  there  would  be  no  inducement  to  shipowners 
to  allow  their  vessels  to  engage  in  salvage  services.  If 
there  be  a  sufficient  fund,  and  the  losses  sustained  by  the 
salvor  are  ascertained,  it  would  be  unreasonable  to  reject 
the  assistance  to  be  derived  from  that  knowledge  when 
fixing  the  amount  of  salvage  reward,  and  their  lordships 
are  unable  to  appreciate  the  argument  that  that  which  is 
known  may  be  taken  into  account  generally,  but  not  spe- 
cifically." 

Professional  Sakors 

It  follows  from  these  considerations  that  the  greatest  en- 
couragement should  be  extended  to  those  most  competent 
to  render  the  service.  Hence  the  courts  look  with  special 
favor  on  the  efforts  of  steamers,  and  will  not  diminish  their 
award  on  account   of  the  rapidity  of  their  service,  but  rather 


§  65)  THE   AWARD  145 

incline  to  enhance  it,  as  promptness  is  specially  commend- 
able.44 

Special  favor  is  shown  to  steamers  equipped  for  salvage 
work  and  to  professional  salvors,  in  view  of  the  large  ex- 
pense of  being  always  ready,  even  when  no  wrecks  are  re- 
ported, the  rapid  deterioration  of  such  property,  the  diffi- 
culty in  protecting  it  by  insurance,  and  the  importance  of 
having  the  business  in  the  hands  of  reputable  men.45 

Locality  as  Affecting  the  Azvard 

The  awards  may  vary  with  the  locality.  The  courts  of 
the  South  Atlantic  Coast  have  felt  called  upon  to  be  liberal 
to  salvors,  on  account  of  the  special  dangers  of  that  coast, 
including  Hatteras,  the  turning  point  of  the  winds,  and  a 
long  and  desolate  seaboard  devoid  of  harbors  and  populous 
cities.  From  these  causes  and  the  comparative  fewness  of 
craft,  the  dangers  of  distressed  vessels  are  multiplied,  and 
hence  the  same  service  is  better  paid  than  if  rendered  on 
the  Northern  Coast,  where  harbors  are  abundant  and  pass- 
ers-by are  frequent.46 

Increase  or  Diminution  of  Previous  Rate  of  Alloiuance 

Salvage  awards,  being  made  on  grounds  of  public  policy, 
may  vary  at  different  times.  If  the  courts  find  that  the  in- 
ducements held  out  are  not  sufficiently  liberal  to  secure  the 
service,  if  they  find  that  distress  signals  are  unheeded  and 
valuable  property  abandoned,  they  will  increase  their 
awards,  and,  vice  versa,  if  smaller  awards  will  secure  such 
efforts,  they  will  diminish  them.47 

44  London  Merchant,  3  Hagg.  Ad.  394 ;  Swiftsure  (D.  C.)  4  Fed. 
463;    Colon  (C.  C)  4  Fed.  469. 

45GLENGYLE  [1898]  P.  97;  Id.,  [1S9S]  A.  C.  519;  Susan.  1 
Spr.  499,  Fed.  Cas.  Xo.  13.&30 ;  Camanehe,  8  Wall.  448,  19  L.  Ed. 
397 ;    St.  Paul  (D.  C.)  82  Fed.  104 ;    Id..  86  Fed.  340,  30  C.  C.  A.  70. 

46  Mary  E.  Dana,  5  Hughes,  362,  17  Fed.  35S ;  Fannie  Brown  (D. 
C.)  30  Fed.  222,  223 ;    Cohen,  Adm.  131. 

47  Daniel  Steinman  (D.  C)  19  Fed.  921,  922;  Edam  (D.  C.)  13  Fed. 
140.  141. 

HuGHES,ADiT.(2D  Ed.)—  10 


146  SALVAGE  (Ch.  6 


SAME— INCIDENTS  OF  THE  SERVICE 

66.  In  addition  to  the  above  general  considerations,  the  fol- 
lowing elements  in  each  special  case  enhance  or 
diminish  the  amount  of  the  award,  according  to 
their  relative  degree. 

(a)  The  degree  of  danger  from  which  the  lives  or  prop- 

erty are  rescued. 

(b)  The  value  of  the  property  saved. 

(c)  The  value  of  the  salvor's  property  employed  and  the 

danger  to  which  it  is  exposed. 

(d)  The  risk  incurred  by  the  salvors. 

(e)  The  skill  shown  in  the  service. 

(f)  The  time  and  labor  occupied. 

(g)  The  degree  of  success  achieved,  and  the  proportions 

of  value  lost  and  saved.48 

The  Danger 

The  largest  awards  have  usually  been  given  where  life 
was  at  stake.  Courts  have  differed  as  to  whether  the  risk 
which  the  salvor  himself  incurs,  or  that  from  which  the  oth- 
ers are  delivered,  ought  first  to  be  considered,  but  they  do 
not  differ  as  to  the  paramount  merit  of  a  service  into  which 
either  of  these  ingredients  enters.49 

So,  too,  as  to  risk  incurred  by  the  property  itself,  primari- 
ly of  the  salved,  secondarily  of  the  salvor.  The  greater  the 
risk,  the  greater  the  merit  of  the  service  and  the  greater  the 
award. 

Under  this  head,  the  awards  in  derelict  cases  may  be  con- 
sidered. Derelicts  are  necessarily  in  greatest  danger.  They 
become  derelicts  because  their  crews  abandon  them  as  sink- 

§  66.     4  8  Sandringham  (D.  C.)  5  Hughes,  316,  10  Fed.  556. 

49  William  Beckford,  3  C.  Rob.  356;  Traveller,  3  Ilagg.  371;  Cargo 
e.v  Sarpedon,  3  P.  D.  28;  Akaba,  54  Fed.  197,  4  C.  C.  A.  281;  Edith 
L.  Allen  (I).  C.)  139  Fed.  888. 


§  66)  THE    AWARD  147 

ing  vessels,  and,  even  if  they  do  not  at  once  go  down,  the 
chance  of  finding  them  is  small.  Hence  it  was  long  the 
practice  of  the  admiralty  courts  to  award  half  in  such  cases. 
But  the  later  decisions,  looking  at  the  reason  rather  than 
the  rule,  consider  all  the  circumstances,  and  give  less  than 
half,  if  a  lesser  amount  will  handsomely  reward  the  sal- 
vor.50 

As  expressed  by  Dr.  Lushington  in  the  TRUE  BLUE51 : 
"The  fact  of  derelict  is,  as  it  were,  an  ingredient  in  the  de- 
gree of  danger  in  which  the  property  is." 

The  Values  and  Risk  Incurred 

The  value  of  the  property  saved  is  an  important  element. 
For  a  long  time  the  courts  were  in  the  habit  of  giving  fixed 
proportions.  In  fact,  originally  the  salvors  were  probably 
paid  in  kind.  In  modern  times  the  rule  of  proportion  has 
been  discarded. 

On  small  values  saved  the  proportion  is  necessarily  great- 
er than  on  large.  Hence,  when  values  are  very  great,  the 
awards  do  not  proportionately  increase.  The  court  will 
give  a  sufficient  sum  to  compensate  the  salvors  handsomely 
for  their  labor  and  risk,  and  encourage  them  to  go  and  do 
likewise,  but  then  its  object  is  accomplished.  In  an  ordi- 
nary case  of  towage  salvage,  for  instance,  its  award  for 
saving  $500,000  would  not  be  as  great  in  proportion  as  its 
award  for  saving  $300,000.52 

In  many  cases  there  may  be  risk  to  the  salvors  and  their 
property,  where  there  is  but  little  risk  to  the  salved.  If  so, 
it  is  a  material  fact  in  fixing  the  award.53 

so  Sandringham  (D.  C.)  5  Hughes,  316,  10  Fed.  556;  TRUE  BLUE. 
L.  R.  1  P.  C.  250 ;  Amerique,  L.  R.  6  P.  C.  468 ;  Janet  Court,  [1897] 
P.  59;  Gardner  v.  Ninety-Nine  Gold  Coins  (D.  C.)  Ill  Fed.  552; 
Flora  Rodgers  (D.  C.)  152  Fed.  286. 

si  L.  R.  1  P.  C.  250. 

52  CITY  OF  CHESTER,  9  P.  D.  202-204. 

saEreza  (D.  C.)  124  Fed.  659;  Launch  B.  B„  15  Can.  Ex.  389; 
17  D.  L.  R.  (Can.)  757. 


148  SALVAGE  (Ch.  6 

The  Skill 

The  skill  shown  by  the  salvors  is  an  important  element, 
to  which  the  court  pays  great  attention.  It  is  on  this  ac- 
count that  professional  salvors  are  especially  encouraged 
and  most  liberally  rewarded,  for  they  usually  possess  spe- 
cial skill  and  experience.  Volunteer  salvors  are  only  ex- 
pected to  show  the  skill  incident  to  their  calling,  and  are 
only  paid  for  such.  Unskillfulness  causing  damage  will 
diminish  a  salvage  award,  though  the  court  makes  all  al- 
lowances for  salvors.54 

A  salvor  may  be  legally  chargeable  with  negligence  as  to 
third  parties,  and  yet  not  be  negligent  as  to  the  property 
saved.  For  instance,  where  two  tugs  in  New  York  Harbor 
were  towing  a  vessel  away  from  a  burning  dock,  and  owing 
to  their  insufficient  power  brought  her  into  collision  with 
other  vessels,  they  were  held  liable  to  these  vessels,  but 
entitled  to  have  the  damages  for  which  they  are  liable  con- 
sidered in  fixing  the  salvage  award.55 

Misconduct  or  bad  faith  will  cause  a  diminution  or  even 
an  entire  forfeiture  of  salvage ;  for,  as  public  policy  is  the 
foundation  of  the  doctrine,  good  faith  and  fair  dealing  are 
essential.56 

The  Time  and  Labor 

As  to  the  time  and  labor  occupied,  if  the  service  involves 
a  long  time  and  great  labor,  it  will,  be  taken  into  account. 
In  the  case  of  steamers,  however,  the  shortness  of  time  does 

54  Magdalen,  31  L.  J.  Ad.  22;  Cheerful,  11  P.  D.  3;  Baker  Stand- 
ard, [1901]  A.  C.  549;  U.  S.  v.  Taylor,  188  U.  S.  283,  23  Sup.  Ct.  412, 
47  L.  Ed.  477;  Dorrington  v.  Detroit.  223  Fed.  232,  138  C.  C.  A.  471 ; 
Haley. mi.  239  Fed.  840,  152  C.  C.  A.  626;  George  W.  Elzey,  250  Fed. 
602,  102  C.  C.  A.  618. 

56  Ashbourne  (D.  C.)  99  Fed.  Ill ;  No.  92,  252  Fed.  117,  1G4  C.  C.  A. 
229. 

Be  CLANDEBOYE,  70  Fed.  631,  17  C.  C.  A.  300;  North  Carolina, 
15  Pet.  40,  10  L.  Ed.  653 ;  Boston,  1  Sumn.  341,  Fed.  Cas.  No.  1,673 : 
Bello  Corrunes,  6  Wheat  L52,  5  L.  Ed.  229;  (iov.  Ames,  108  Fed.  969, 
4s  C.  C.  A.  170;   Celtic  Chief,  230  Fed.  753,  1 15  C.  C.  A.  63. 


§  67)  SALVAGE   CONTRACTS  149 

not  detract  from  the  service.  Dr.  Lushington  put  this  very 
well  when  he  said  that  he  could  not  understand  why  the 
patient  should  complain  of  the  shortness  of  an  operation.57 

The  Result  Achieved 

As  to  the  degree  of  success  achieved,  and  the  propor- 
tion of  values  lost  and  saved,  the  principle  is  that,  if  the  en- 
tire property  is  saved,  the  owner,  having  suffered  less, 
can  better  afford  to  pay  handsomely  than  if  only  a  portion 
is  saved,  and  the  salvor  is  to  be  paid  out  of  a  mere  rem- 
nant. 

For  instance,  other  things  being  equal,  the  court  will  de- 
cree a  larger  award  if  an  entire  cargo  of  $100,000  is  saved 
than  it  would  if  out  of  an  entire  cargo  of  $300,000  only  $100,- 
000  were  saved.58 

SALVAGE  CONTRACTS 

67.  A  salvage  contract  is  binding  if  free  from  circumstances 
of  imposition  and  the  negotiations  are  on  equal 
terms ;  but  not  if  the  salvor  takes  advantage  of  his 
position,  or  if  either  is  guilty  of  fraud  or  misrepre- 
sentation. 

In  modern  times  salvage  generally  springs  from  contract. 
The  courts  at  one  time  went  far  in  doing  away  with  the 
binding  effect  of  such  contracts,  saying  that  the  amount 
agreed  on  is  only  presumptive  evidence,  and  may  be  in- 
quired into. 

As  to  the  general  principle  there  should  not  be  any  dif- 
ference between  a  salvage  contract  and  any  other.  Circum- 
stances of  fraud,  oppression,  or  inequality  will  affect  any 

57  General  Palmer,  5  Notes  of  Cas.  159;  Thomas  Flelden,  32  L. 
J.  Ad.  61;  Andalusia,  12  L.  T.  (N.  S.)  584;  B.  C.  Terry  (D.  C.)  9 
Fed.  920,  927 ;  Connemara,  10S  U.  S.  352,  2  Sup.  Ct.  754,  27  L.  Ed. 
751. 

58  Sandringham  (D.  O.)  5  Hughes,  316,  10  Fed.  556;  Isaac  Aller- 
ton,  Fed.  Cas.  No.  7,0S8. 


150  SALVAGE  (Ch.  6 

contract.  Hence  it  is  easy  to  understand  why  a  contract 
made  at  sea  between  a  helpless  wreck  and  an  approaching 
rescuer  should  be  inquired  into,  like  a  contract  made  on  land 
under  the  persuasive  muzzle  of  a  revolver.  But  when  the 
circumstances  show  no  inequality  of  negotiation,  as  when 
the  owner  of  a  sunken  vessel,  after  ample  deliberation,  con- 
tracts to  have  his  vessel  raised,  there  is  no  reason  on  prin- 
ciple, why  he  should  not  be  held  to  his  bargain,  though  it 
should  turn  out  to  be  a  bad  one.  And  so  the  Supreme  Court 
has  decided.59 

SALVAGE  APPORTIONMENT 

68.  A  salvage  award  is  apportioned  among  those  who  con- 
tribute directly  or  indirectly  to  the  service,  in- 
cluding the  owners  of  the  salving  property  at  risk ; 
and  admiralty  has  jurisdiction  of  a  suit  to  compel 
an  apportionment. 

Having  discussed  the  doctrines  governing  the  assessment 
of  a  salvage  award,  it  is  now  necessary  to  consider  to  whom 
the  amount  so  fixed  should  be  paid.  As  a  rule,  it  goes  only 
to  those  who  participated,  directly  or  indirectly,  in  the  serv- 
ice. All  the  salving  crew  share,  those  immediately  engaged 
most  largely  ;  but  those  whose  work  on  the  salving  vessel  is 
increased  also  share  in  less  proportion.  The  owners  of  the 
salving  vessel,  though  not  present,  participate  on  account  of 
the  risk  to  which  their  property  is  exposed.  If  the  salv- 
ing vessel  is  a  steamer,  her  owners  receive  much  the  great- 
er portion,  on  account  of  the  efficiency  of  such  vessels.  In 
such  cases  it  is  the  rule  to  award  the  owners  three-fourths.60 

1  Ifrida,  172  U.  S.  186,  10  Sup.  Ct.  146,  43  L.  Ed.  413  (reversing 
77  Fed.  754,  23  C.  C.  A.  527).  See,  also,  sir  William  Armstrong  (D. 
C.)  53  Fed.  145;  Kennebec,  2.31  Fed.  423,  145  C.  C.  A.  117;  Ilum- 
aroek  (D.  C.)  234  Fed.  71G;  Akerblom  v.  Price,  7  Q.  B.  D.  129;  Port 
Caledonia,  [1903]  P.  1S4. 
g  68.     ,;"<'ity  of  Paris,  Kenn.  Civ.  Salv.  154;    Cape  Fear  Towing 


§  68)  SALVAGE   APPORTIONMENT  151 

Independent  of  statute,  the  fact  that  salvor  and  salved 
vessels  belonged  to  the  same  owner  did  not  prevent  the 
owner  of  the  salving  vessel  from  claiming  salvage  against 
the  cargo  of  the  salved  vessel,  where  there  was  no  breach 
of  the  contract  of  carriage.61 

Nor  did  it  prevent  the  crew  of  the  salving  vessel  from 
claiming  salvage  for  their  work,  both  to  the  salved  vessel 
and  her  cargo.62 

And  now  it  is  provided  by  statute  that  "the  right  to  re- 
muneration for  assistance  or  salvage  services  shall  not  be 
affected  by  common  ownership  of  the  vessels  rendering  and 
receiving  such  assistance  or  salvage  services."63 

Of  the  amount  set  aside  for  the  crew,  the  master,  on  ac- 
count of  his  responsibilities,  receives  a  larger  proportionate 
share,64  and  the  remainder  is  divided  among  the  crew  in 
proportion  to  their  wages,  unless  special  circumstances  call 
for  special  allowances.  Passengers  or  other  persons  aboard 
the  salving  ship  may  share  if  they  render  aid. 

It  is  frequently  necessary  to  make  a  salvage  award  as  a 
whole,  and  then  opportion  it  among  different  sets  of  salvors. 
The  apportionment  is  made  according  to  their  relative  mer- 
its, though  the  first  set  of  salvors  usually  receive  special 
consideration.65 

Admiralty  has  jurisdiction  of  a  suit  by  co-salvors  to  com- 
pel a  refunding  by  a  salvor  to  whom  the  entire  award  has 
been  paid.66 

&  Transp.  Co.  v.  Pearsall,  90  Fed.  435,  33  C.  C.  A.  161;    City  of 
Puebla  (D.  C.)  153  Fed.  925 ;    Gibson  (D.  C.)  160  Fed.  230. 

6i  Gilchrist  Transp.  Co.  v.  110,000  Bushels  of  No.  1  Northern 
Wheat  (D.  C.)  120  Fed.  432. 

62  Rees  v.  U.  S.  (D.  C.)  134  Fed.  146;    Glenfruin.  10  P.  D.  103. 

63  Act  Aug.  1,  1912,  §  1,  37  Stat.  242  (U.  S.  Comp.  St.  §  7990) ; 
Appx.  425;    Roanoke,  214  Fed.  63,  130  C.  C.  A.  503. 

e*  Tijuca  (D.  C.)  247  Fed.  358. 

es  Santipore,  1  Spinks,  231;    Livietta,  8  P.  D.  24;    Strathnevis  (D. 
C.)  76  Fed.  855 ;    Annie  Lord  (D.  C.)  251  Fed.  157. 
ee  McMullin  v.  Blackburn  (D.  C.)  59  Fed.  177. 


152  SALVAGE  (Ch.  6 


SALVAGE  CHARGEABLE  AS  BETWEEN  SHIP  AND 

CARGO 

69.  A  salvage  award  is  charged  against  vessel  and  cargo  in 
proportion  to  their  values  at  the  port  of  rescue, 
each  being  severally  liable  for  its  share  alone. 
Freight  contributes  pro  rata  itineris. 
The  salvor  has  a  remedy  in  rem  against  the  property 
saved. 

The  principle  is  that  vessel,  cargo,  and  freight  money 
saved  are  to  contribute  according  to  their  relative  values  at 
the  port  of  rescue.  The  same  percentage  is  charged  against 
all,  though  portions  were  saved  more  easily  and  were  at  less 
risk  ;  the  reason  being  that  differences  in  this  respect  would 
produce  endless  confusion,  and  tempt  the  salvors  to  save 
portions  of  the  cargo  without  attempting  to  rescue  other 
portions.     Specie  is  subject  to  the  same  rule.67 

If  the  voyage  has  not  been  completed,  the  court  will  pro- 
rate the  freight  money  from  the  initial  point  to  the  port  of 
rescue,  and  make  only  that  proportion  of  the  freight  con- 
tribute. For  instance,  if  the  voyage  is  one-third  completed 
at  the  time  of  the  accident,  the  value  of  one  third  of  the 
freight  will  be  taken,  on  which  salvage  will  be  assessed.68 

As  between  ship  and  cargo,  each  is  liable  severally  only 
for  its  own  proportion.  The  salvor  who  neglects  to  pro- 
ceed against  both  cannot  recover  his  entire  salvage  from 
one.69 

§  G9.  c?  St.  Paul,  S6  Fed.  340,  30  C.  C.  A.  70 ;  Longford,  6  P.  D. 
GO.  But  where  one  series  of  operations  saved  the  vessel  and  an- 
other the  cargo,  there  may  be  separate  proceedings  against  each,  and 
different  percentages  assessed.    St.  Paul,  supra. 

•  -  NORMA,  Lush.  124;  Sandringham  (D.  C.)  5  Hughes,  316,  10 
Fed.  556;    Kaffir  Prince,  31  T.  L.   K.  296. 

68  Raisby,  10  P.  D.  114;  Jewell  (D.  C.)  41  Fed.  103;  Alaska  (D.  C) 
23  Fed.  597.  Bui  the  court  may  charge  the  entire  amounl  against 
the  ship,  if  the  disaster  was  caused  by  any  act  for  which  the  ship 


§  69)  CHARGEABLE   AS   BETWEEN   SHIP  AND   CARGO  153 

The  Lamington  70  contains  an  interesting  compilation  of 
salvage  precedents. 

A  salvage  service  gives  a  maritime  lien  upon  the  proper- 
ty saved,  enforceable  by  a  proceeding  in  rem,  and  not  de- 
pendent upon  the  salvor's  retention  of  possession.71 

It  may  be  asserted  against  government  property,  if  the 
possession  of  the  government  is  not  disturbed.72 

Under  Supreme  Court  admiralty  rule  No.  19,  suit  may 
also  be  brought  in  personam  against  the  party  at  whose 
request  and  for  whose  benefit  the  salvage  service  has  been 
performed. 

But  such  proceedings,  whether  in  rem  or  in  personam, 
must  now  be  brought  within  two  years  from  the  rendition 
of  the  service,  unless  there  has  been  no  reasonable  oppor- 
tunity to  proceed  within  that  time.73 

would  be  responsible  to  the  cargo.  Lackawanna  (D.  C.)  220  Fed. 
1000. 

70  S6  Fed.  675,  30  C.  C.  A.  271. 

7i  Sabine,  101  U.  S.  384,  25  L.  Ed.  982;  Byrne  v.  Johnson,  53  Fed. 
840,  4  C.  C.  A.  47 ;  Barnett  &  Record  Co.  v.  Wineinan,  202  Fed.  110, 
122  C.  C.  A.  222 ;    Alcazar  (D.  C.)  227  Fed.  633. 

72  Davis,  10  Wall.  15,  19  L.  Ed.  875;  Johnson  Lighterage  Co.  No. 
24  (D.  C.)  231  Fed.  365. 

7  3  Act  Aug.  1,  1912,  §  4,  37  Stat  242  (U.  S.  Conip.  St.  §  7993), 
Appx.  425. 


154  CONTRACTS   OF  AFFREIGHTMENT  (Ch.  7 


CHAPTER  VII 

OF  CONTRACTS  OF  AFFREIGHTMENT  AND  CHARTER 
PARTIES 

70-72.     "Contracts  of  Affreightment"  Defined,  and  Distinguished  from 
Charter  Parties. 

73.  Warranties  Implied  in   Contracts   of  Affreightment  against 

Unseaworthiness  and  Deviation. 

74.  Mutual  Remedies  of   Ship  and  Cargo  on  Contracts  of  Af- 

freightment. 

75.  Entirety  of  Affreightment  Contract 
7C-.     Apportionment  of  Freight. 

77-78.  Ship  as  Common  Carrier. 

79.  Bill  of  Lading— Making  and  Form  in  General. 
SO.  Negotiability. 

81.  Exceptions  in  General. 

82.  Exception  of  Perils  of  the  Sea. 

83.  "Charter  Parties"  Defined. 

84.  Construction  of  Charter  Parties. 

S"».     Conditions  Implied  in  Charter  Parties  of  Seaworthiness  and 
against  Deviation. 

86.  Cancellation  Clause  in  Charter  Parties. 

87.  Loading  Under  Charter  Parties. 

88.  Execution  of  Necessary  Documents  under  Charter  Parties. 

89.  Cesser  Clause  in  Charter  Parties. 


"CONTRACTS    OF    AFFREIGHTMENT"    DEFINED, 

AND  DISTINGUISHED  FROM 

CHARTER  PARTIES 

70.  A  vessel  may  be  operated  by  her  owners  on  their  own 

account,   or   she  may  be  hired  by  her  owners  to 
others. 

71.  The  hiring  of  a  vessel  to  others  is  usually  done  by  char- 

ter parties. 

72.  When  a  vessel  is  operated  by  her  owners  on  their  own 

account,  or  contracts  direct  with  her  shippers,  such 
contracts  are  called  "contracts  of  affreightment." 


§  73)  DEPLIED   WARRANTIES  155 

The  contracts  of  vessels  heretofore  discussed  have  been 
those  incidental  transactions  tending-  to  facilitate  the  object 
of  her  creation.  The  class  of  contracts  with  which  we 
are  now  to  deal  spring  directly  out  of  her  use  as  a  business 
enterprise. 

A  vessel  is  made  to  plow  the  seas,  not  to  rot  at  the  piers. 
But.,  with  the  exception  of  those  which  are  used  as  toys  by 
the  rich,  they  do  not  plow  the  seas  for  amusement.  The 
reward  earned  for  transporting  cargo  is  called  "freight." 
In  BRITTAN  v.  BARNABY,1  Mr.  Justice  Wayne  defines 
"freight"  as  the  hire  agreed  upon  between  the  owner  or 
master  for  the  carriage  of  goods  from  one  port  or  place  to 
another. 

WARRANTIES   IMPLIED  IN  CONTRACTS   OF  AF- 
FREIGHTMENT AGAINST  UNSEAWORTHI- 
NESS AND   DEVIATION 

73.  In  contracts  of  affreightment  there  is  an  implied  war- 
ranty of  seaworthiness  and  against  deviation. 

The  warranty  of  seaworthiness  in  the  relations  between 
vessel  and  shipper  is  one  of  the  most  severe  known  to  the 
law.  It  is  that,  at  the  commencement  of  the  voyage,  the 
vessel  shall  be  thoroughly  fitted  for  the  same,  both  as  re- 
gards structure  and  equipment.  It  is  not  merely  that  the 
vessel  owner  will  exercise  reasonable  care  to  have  her  in 
this  condition,  or  that  he  will  repair  such  things  as  are  dis- 
coverable, but  it  is  an  absolute  warranty  of  fitness  for  the 
voyage  against  even  such  defects  as  are  latent.2 

§§  70-72.  *  21  How.  527.  16  L.  Ed.  177.  Under  the  limited  lia- 
bility act,  the  word  "freight"'  includes  prepaid  fare  of  passengers,  but 
not  a  government  subsidy.  Bourgogne,  210  U.  S.  95.  28  Sup.  Ct 
664,  52  L.  Ed.  973 ;    post,  p.  371. 

§  73.  2  Northern  Belle,  154  U.  S.  571,  14  Sup.  Ct.  1166,  19  L. 
Ed.  748;  CALEDONIA,  137  U.  S.  124,  15  Sup.  Ct.  537,  39  L.  Ed. 
644. 


156  CONTRACTS    OF   AFFREIGHTMENT  (Cll.  7 

The  warranty  against  deviation  is  that  the  vessel  will  pur- 
sue her  voyage  by  the  accustomed  route  without  unneces- 
sary delay;  though  going  to  a  port  a  little  out  of  the 
straight  course,  when  it  is  shown  to  be  the  usage  of  that 
navigation  for  vessels  to  stop  by  such  a  port,  would  not  be 
considered  a  deviation.3 

These  two  warranties  apply  also  to  charter  parties,  and 
will  be  treated  more  fully  in  that  connection.4 

MUTUAL  REMEDIES  OF  SHIP  AND  CARGO  ON 
CONTRACTS  OF  AFFREIGHTMENT 

74.  It  is  a  fundamental  principle  that  the  ship  is  pledged  to 
the  cargo  and  the  cargo  to  the  ship  for  the  ful- 
fillment of  the  conditions  of  the  contract  of  car- 
riage. 

This  reciprocal  right  of  procedure  is  one  of  the  most  an- 
cient doctrines  of  the  admiralty.  Under  it,  the  vessel  has  a 
lien  upon  the  cargo  for  its  freight  money.5 

This  lien  or  right  of  the  vessel  to  hold  the  cargo  for  its 
freight  money  differs  from  the  admiralty  liens  heretofore 
discussed  in  the  fact  that  it  is  dependent  upon  actual  or 
constructive  possession.  The  vessel  owner  who  delivers  the 
cargo  unconditionally  into  the  possession  of  the  consignee 
loses  his  right  to  hold  the  cargo  itself  for  his  freight.6 

But  one  of  the  principles  of  the  law  of  freight  is  that 
freight  is  not  due  until  the  cargo  is  unloaded  and  the  con- 
signee has  an  opportunity  to  inspect  the  goods  and  ascer- 

3  HOSTETTER  v.  PARK,  137  U.  S.  30,  11  Sup.  Ct.  1,  34  L.  Ed.  568; 
Prussia  (D.  C.)  100  Fed.  484. 

4  Post,  p.  171. 

g  71.  &  Certain  Logs  <>f  Mahogany,  2  Snmn.  589,  Fed.  Cas.  No. 
2,559;  Seaboard  (D.  C.)  119  Fed.  375;  Jebsen  v.  A  Cargo  of  Hemp 
<1>.  C.)  228  Fed.  1  i::. 

e  Pioneer  Fuel  Co.  v.  McBrler,  28  C.  C.  A.  466,  84  Fed.  495;  Cargo 
of  Fertilizer  (D.  C.)  88  Fed.  984;    Appam  (D.  C.)  243  Fed.  230. 


§  74)  MUTUAL   REMEDIES  157 

tain  their  condition.  Hence  the  master  of  a  vessel  cannot 
demand  his  freight  as  a  condition  precedent  to  unloading; 
nor,  on  the  other  hand,  can  the  consignee  demand  the  goods 
as  a  condition  precedent  to  paying  the  freight.  The  mas- 
ter, in  other  words,  must  discharge  his  goods,  but  not  de- 
liver them.  If  he  and  the  consignee  are  dealing  at  arm's 
length,  his  proper  procedure  would  be  to  discharge  them  in 
a  pile  by  themselves,  notifying  the  consignee  that  he  does 
not  give  up  his  lien  for  freight;  or,  if  necessary  for  their 
protection,  discharge  them  into  a  warehouse,  or  into  the 
hands  of  a  third  person.  Then  if  the  consignee,  after  a 
reasonable  time  allowed  for  inspection,  does  not  pay  the 
freight,  the  master  can  proceed  in  rem  against  the  goods  to 
enforce  its  payment.7 

Conversely,  the  cargo  has  a  right  of  procedure  against 
the  ship  for  any  violation  of  the  contract  of  affreightment.8 

Transactions  more  thoroughly  marine  in  nature  than  the 
relations  of  ship  and  cargo  could  hardly  be  imagined.  Yet 
one  result  of  the  common-law  warfare  upon  the  admiralty 
in  England,  and  the  contention  that  contracts  made  on  land, 
no  matter  what  their  subject-matter,  were  without  the  ad- 
miralty, was  that  in  England  the  admiralty  courts  lost  ju- 
risdiction over  such  controversies.9 

It  was  partially  restored  by  Act  24  Vict.  c.  10,  §  6,  but 
only  to  the  extent  of  giving  a  power  to  arrest,  not  a  lien, 
and  giving  that  only  against  vessels  no  owner  or  part  own- 
er of  which  resided  in  England  or  Wales.1'0 

7  BRITTAN  v.  BARNABY,  21  How.  527,  16  L.  Ed.  177 ;  BAGS  OF 
LINSEED,  1  Black,  108,  17  L.  Ed.  35 ;  Nathaniel  Hooper,  Fed.  Cas. 
No.  10,032;  Cassius,  2  Story,  81,  Fed.  Cas.  No.  564;  Treasurer,  1 
Spr.  473,  Fed.  Cas.  No.  14.159. 

s  Rebecca,  1  Ware,  187,  Fed.  Cas.  No.  11,619 ;  Bulkley  v.  Naumkeag 
Steam  Cotton  Co.,  24  How.  386,  16  L.  Ed.  599 ;  Humarock  (D.  C.)  234 
Fed.  716. 

9  Cargo  ex  Argos,  L.  R.  5  P.  C.  146-14S. 

iopieve  Superiore,  L.  R.  5  P.  C.  4S2 ;  Scrutton  on  Charter  Par- 
ties and  Bills  of  Lading,  376-380,  406. 


158  CONTRACTS    OF   AFFREIGHTMENT  (Ch.  7 

ENTIRETY  OF  AFFREIGHTMENT  CONTRACT 

75.  The  contract  of  affreightment  is  an  entire  contract,  so 
that  freight  is  not  earned  until  the  contract  is  com- 
pleted. 

On  this  subject  Mr.  Justice  Story  says  in  the  Nathaniel 
Hooper,  above  cited :  "The  general  principle  of  the  mari- 
time law  certainly  is  that  the  contract  for  the  conveyance 
of  merchandise  on  a  voyage  is  in  its  nature  an  entire  con- 
tract, and,  unless  it  be  completely  performed  by  the  deliv- 
ery of  the  goods  at  the  place  of  destination,  no  freight  what- 
soever is  due ;  for  a  partial  conveyance  is  not  within  the 
terms  or  the  intent  of  the  contract,  and,  unless  it  be  com- 
pletely performed  by  the  delivery  of  the  goods  at  the  place 
of  destination,  no  freight  whatsoever  is  due,  and  the  mer- 
chant may  well  say  'Non  in  hsec  fcedera  veni.'  " 

Under  this  principle,  in  case  of  a  marine  disaster,  the 
master  has  the  right  to  repair  and  complete  the  voyage,  al- 
though this  action  on  his  part  involves  delay;  or  he  may 
transship  the  goods  into  another  vessel  and  so  save  the 
freight.  If  the  delay  or  the  condition  of  the  goods  is  such 
as  to  render  either  of  these  expedients  unprofitable,  he  may 
sell  the  goods  at  an  intermediate  port,  and  terminate  the 
venture,  but  in  the  latter  case  he  would  not  be  entitled  to 
his  freight.11 

But  if  the  voyage  is  broken  up  before  completion,  though 
from  a  cause  beyond  his  control,  he  loses  his  freight.12 

§  75.  "  Jordan  v.  Warren  Ins.  Co.,  Fed.  Cas.  No.  7,524;  Hugg  v. 
Augusta  Ins.  &  Banking  Co.,  7  How.  595,  12  L.  Ed.  834.  If  he  car- 
ries part  of  the  cargo  contracted  for,  he  can  recover  freight  for  the 
part  so  carried  less  damages  for  his  failure  to  carry  the  rest.  Ed- 
ward  Hines  Lumber  Co.  v.  Chamberlain,  118  Fed.  716,  55  C.  C.  A. 
236. 

12  Appam  (D.  C.)  243  Fed.  230.  The  voyage  was  not  broken  up 
when  the  crew  left  a  ship  under  orders  of  a  hostile  submarine,  with- 


§  76)  APPORTIONMENT   OF  FREIGHT  159 


APPORTIONMENT  OF  FREIGHT 

76.  Freight  is  payable  pro  rata  at  an  intermediate  port,  if 
the  voyage  is  broken  up,  only  by  the  consent  of  the 
consignee,  either  actual,  or  implied  from  his  volun- 
tarily receiving  his  goods  at  such  intermediate  port. 

This  is  not  an  exception  to  the  general  rule  based  upon 
the  principle  of  entirety  of  contracts,  that  freight  is  only 
due  when  the  voyage  is  completed.  It  is  tantamount  to 
saying  that  the  parties,  by  mutual  agreement,  may  rescind 
the  contract  at  an  intermediate  port.  Hence  the  accept- 
ance of  the  goods  at  an  intermediate  port,  not  voluntarily, 
but  in  pursuance  of  a  practical  necessity  on  the  part  of  the 
consignee  to  receive  them,  does  not  entitle  the  vessel  to  pro 
rata  freight,  and  if  the  vessel  incurs  expenses  before  leav- 
ing the  initial  port  at  all,  or  "breaking  ground,"  as  it  is  tech- 
nically called,  no  pro  rata  freight  could  be  equitably 
claimed.13 

A  provision  requiring  the  shipper  to  prepay  the  freight 
on  delivery  of  the  goods  to  the  carrier,  and  authorizing  the 
carrier  to  retain  it  if  prevented  from  proceeding  by  causes 
beyond  his  control  (for  instance,  an  embargo),  will  be  en- 
forced, though  the  vessel  never  broke  ground.14 

.The  delivery  of  the  cargo  on  a  wharf  with  notice  to  the 

out  the  intent  to  abandon  permanently;  the  ship  having  been  sub- 
sequently brought  into  port.     Bradley  v.  Newsuin,  34  T.  L.  R.  613. 

§  76.  is  Saropayo  v.  Salter,  1  Mason,  43,  Fed.  Cas.  No.  12,277; 
Tornado,  10S  U.  S.  342,  2  Sup.  Ct.  746,  27  L.  Ed.  747 ;  Mitsui  v.  St. 
Paul  Fire  &  Marine  Ins.  Co.,  202  Fed.  26,  120  C.  C.  A.  2S0.  As  to 
the  meaning  of  "breaking  ground,"  see  ante,  p.  72,  note  82. 

i4AUanwilde  Transport  Corporation  v.  Vacuum  Oil  Co.,  248  TJ.  S. 
377,  39  Sup.  Ct.  147.  63  L.  Ed.  312,  3  A.  L.  R.  15 ;  Grade  D.  Cham- 
bers, 248  TJ.  S.  387,  39  Sup.  Ct.  149,  63  L.  Ed.  ;    Bris,  248  U.  S. 

392,  39  Sup.  Ct.  150,  63  L.  Ed.  321. 


1G0  CONTRACTS   OF  AFFREIGHTMENT  (Ch.  7 

consignee,  or  without  notice,  if  that  is  the  usage  of  the  port, 
is  a  termination  of  the  ship's  liability  as  carrier.1'3 

The  vessel  owner  is  entitled  to  his  freight  if  the  goods 
arrive  in  specie,  though  they  have  been  so  injured  as  to  be 
practically  valueless,  provided  the  injury  is  not  caused  by 
such  acts  as  would  render  the  carrier  liable.16 

In  a  suit  by  the  vessel  owner  for  freight,  the  consignee 
may  in  the  same  suit  plead  in  recoupment  any  damage  done 
to  the  goods  for  which  the  carrier  is  liable.17 

The  receipt  of  the  goods  by  the  consignee  is  an  implied 
promise  on  his  part  to  pay  the  freight  (though  such  impli- 
cation may  be  rebutted),  and  he  may  be  sued  for  it  person- 
ally.1'8 

SHIP  AS  COMMON  CARRIER 

77.  A  ship  may  or  may  not  be  a  common  carrier,  according 

to  the  manner  in  which  she  is  being  used. 

78.  A  general  ship  is  a  common  carrier. 

When  is  a  ship  a  common  carrier,  and  when  not?  The 
test  is  well  laid  down  in  the  case  of  the  Niagara,19  where 
the  court  says:  "A  common  carrier  is  one  who  undertakes 
for  hire  to  transport  the  goods  of  those  who  may  choose  to 
employ  him  from  place  to  place.  He  is  in  general  bound 
to  take  the  goods  of  all  who  offer."  Story  thus  defines  a 
"common  carrier":   "To  bring  a  person  within  the  descrip- 

15  Constable  v.  National  Steamship  Co.,  134  U.  S.  51,  14  Sup.  Ct. 
1062,  38  L.  Ed.  903. 

i«Hugg  v.  Augusta  Ins.  &  Banking  Co.,  7  How.  o95,  12  L.  Ed.  834; 
Seaman  v.  Adler  (C.  C.)  37  Fed.  268. 

i 1  Snow  v.  Carruth,  1  Spr.  324,  Fed.  Cas.  No.  13,144 ;  Bearse  v. 
Ropes,  1  Spr.  331.  Fed.  Cas.  No.  1,192. 

isTrask  v.  Duvall,  4  Wash.  C.  C.  181,  Fed.  Cas.  No.  14.144;  Vane 
v.  A.  M.  Wood  &  Co.  (D.  C.)  231  Fed.  353;  Froutier  S.  S.  Co.  v. 
Central  Coal  Co.,  234  Fed.  30,  148  C.  C.  A.  46. 

||  77,  7S.  i»21  How.  22,  1G  L.  Ed.  41.  See,  also,  .Taininet  v. 
American  Storage  &  Moving  Co.,  109  Mo.  App.  257,  Si  S.  W.  128. 


§  79)  BILL  OP  LADING  161 

tion  of  a  common  carrier,  he  must  exercise  it  as  a  public 
employment ;  he  must  undertake  to  carry  goods  for  persons 
generally;  and  he  must  hold  himself  out  as  ready  to  engage 
in  the  transportation  of  goods  for  hire  as  a  business,  not  as  a 
casual  occupation  pro  hac  vice."  20 

From  this  definition  it  is  clear  that  regular  liners  are 
common  carriers,  as  is  any  ship  that  carries  on  business  for 
all,  and  by  advertisement  or  habit  carries  goods  for  all  alike. 
A  general  ship  is  a  common  carrier.21 

On  the  other  hand,  a  ship  chartered  for  a  special  cargo, 
or  to  a  special  person,  is  not  a  common  carrier,  but  an  ordi- 
nary bailee  for  hire.22 

BILL  OF  LADING— MAKING  AND.  FORM  IN 
GENERAL 

79.  The  document  evidencing  the  contract  of  shipment  is 
known  as  a  "bill  of  lading."  Even  in  the  case  of 
chartered  vessels,  and  of  course  in  the  case  of  ves- 
sels trading  on  owner's  account,  the  bill  of  lading 
is  usually  given  by  the  master  to  the  shipper  di- 
rect, and  binds  the  vessel  or  her  owners  to  the 
shipper. 

Originally  it  was  a  simple  paper.  Here  is  an  old  form: 
"Shipped  by  the  grace  of  God,  in  good  order,  by  A.  B., 
merchant,  in  and  upon  the  good  ship  called  the  John  and 
Jane,  whereof  C.  D.  is  master,  now  riding  at  anchor  in  the 
river  Thames,  and  bound  for  Barcelona,  in  Spain,  20  bales 
of  broadcloth,  marked  and  numbered  as  per  margin;   and 

20  Story,  Bailni.  §  495. 

2i  Liverpool  &  G.  W.  S.  Co.  v.  Phenix  Ins.  Co.  (The  Montana)  129 
U.  S.  437,  9  Sup.  Ct.  469,  32  L.  Ed.  7S8. 

22  Lamb  v.  Parkman,  1  Spr.  343,  Fed.  Cas.  No.  8,020;  Dan  (D.  C.) 
40  Fed.  691;  Nugent  v.  Smith,  1  C.  P.  D.  423;  C.  R.  Sheffer,  249 
Fed.  600,  161  C.  C.  A.  526. 

Httgties,Adm.  (2d  Ed.) — 11 


102  CONTKACTS   OF   AFFBEIGHTMENT  (Ch.  7 

are  to  be  delivered  in  the  like  good  order  and  condition  at 
Barcelona  aforesaid  (the  dangers  of  the  sea  excepted),  unto 
E.  F.,  merchant  there,  or  to  his  assigns,  he  or  they  paying 

for  such  goods,  per  piece  freight,  with  primage  and 

average  accustomed.  In  witness  whereof  the  master  of 
said  ship  hath  affirmed  to  three  bills  of  lading  of  this  tenor 
and  date,  one  of  which  bills  being  accomplished,  the  other 
two  to  stand  void.  And  so  God  send  the  good  ship  to  her 
destined  port  in  safety. 

"Dated  at  London  the day  of ." 

This  form  is  substantially  the  same  as  that  used  to-day 
by  the  coastwise  schooners. 

But  under  modern  business  methods  a  shipper  of  produce 
for  export,  like  cotton,  tobacco,  or  grain,  can  go  to  his 
railway  station  far  inland,  and  procure  a  through  bill  of 
lading  to  England  or  the  Continent.  This  is  a  very  elab- 
orate document,  amphibious  in  nature,  as  half  its  stipula- 
tions apply  to  land  carriage  and  half  to  water  carriage.  A 
sample  may  be  seen  in  a  footnote  to  the  Montana.23 

SAME— NEGOTIABILITY 

80.  A  bill  of  lading  is  negotiable  only  in  a  qualified  sense. 
It  does  transfer  the  title,  but  it  is  not  so  far  nego- 
tiable as  to  shut  out  all  defenses  which  could  be 
made  between  the  carrier  and  the  original  holder. 

For  instance,  in  the  Treasurer,24  the  assignee  of  a  bill  of 
lading  illegally  refused  to  pay  the  freight.  The  consignee 
treated  this  as  rescinding  the  contract  of  sale  between  him 
and  the  assignee  for  the  cargo  represented  by  the  bill  of 
lading,  and  sold  it  to  a  third  party.  The  assignee  thereupon 
proceeded  against  the  ship.  Judge  Sprague  held  that,  as  he 
had  illegally  refused  to  pay  the  freight,  the  master  could 

§  79.     =  ■"  129  U.  S.  401,  0  Sup.  Ct.  409,  32  L.  Ed.  788. 
§  so.     -■»  l  Spr.  47."..  Fed.  Cas.  No.  14,159. 


§  81)  BILL   OF  LADING  163 

have  sold  the  cargo,  and  that  the  indorsing  of  the  bill  of 
lading  to  him  gave  him  no  greater  rights  than  any  other 
delivery  by  symbol  could  have  given ;  that  such  a  delivery 
had  no  greater  efficacy  than  a  manual  delivery  of  the  prop- 
erty itself,  and  therefore  his  action  could  not  be  maintained. 

It  is  well  settled  that  the  master  may  prove  a  short  de- 
livery of  cargo  in  cases  where  he  is  not  responsible  even 
against  an  assignee  of  a  bill  of  lading.25 

A  master  cannot  bind  the  vessel  or  owners  by  receipting 
for  goods  not  actually  in  his  custody,  and  such  defense  can 
be  set  up  even  against  a  bona  fide  holder  of  the  bill  of  lad- 
ing, though  it  is  sometimes  a  nice  question  as  to  the  exact 
point  at  which  the  goods  passed  into  the  custody  of  the 
master.26 

A  recital  in  the  bill  of  lading  that  goods  are  received  in 
good  condition  puts  upon  the  carrier  the  burden  of  proving 
a  loss  by  excepted  perils  in  case  the  goods  when  delivered 
are  in  a  damaged  condition.27 


SAME— EXCEPTIONS  IN  GENERAL 

81.  Independent  of  statute,  a  carrier  cannot  stipulate  for 
exemption  from  negligence  in  a  bill  of  lading,  as 
such  a  stipulation  contravenes  public  policy.28 

2  5  Seefahrer  (D.  C.)  133  Fed.  793;  John  Twohv  (D.  C.)  243  Fed. 
720. 

2  6  American  Sugar  Refining  Co.  v.  Maddock,  93  Fed.  980,  36  0.  C. 
A.  42;  Bulkley  v.  Naumkeag  Steam  Cotton  Co..  24  How.  386,  16  L. 
Ed.  599;  Missouri  Pac.  R.  Co.  v.  McFadden,  154.  U.  S.  155,  14  Sup. 
Ct.  990,  3S  L.  Ed.  944 ;  Atchison,  T.  '&  S.  F.  R.  Co.  v.  Harold,  241  U. 
S.  371,  36  Sup.  Ct.  665.  60  L.  Ed.  1050. 

2  7BRITTAN  v.  BARNABY,  21  How.  527,  16  L.  Ed.  177;  Nelson 
v.  Woodruff,  1  Black,  156,  17  L.  Ed.  97 ;  Jahn  v.  Folmina,  212  U.  S. 
354,  29  Sup.  Ct.  363,  53  L.  Ed.  546,  15  Ann.  Cas.  748. 

§  81.  2  8  new  YORK  C.  R.  CO.  v.  LOCK  WOOD,  17  Wall.  357,  21 
L.  Ed.  627;  Kensington,  1S3  U.  S.  263,  22  Sup.  Ct.  102,  46  L.  Ed. 
190. 


164  CONTRACTS   OP   AFFREIGHTMENT  (Ch.  7 

But  he  may  independent  of  statute,  require  the  shipper  to 
value  the  goods  in  the  bill  of  lading,  and  limit  his  liability 
to  that  valuation.29  And  he  may  limit  his  liability  for  a 
passenger's  baggage.30  He  may  require  claims  to  be  made 
against  him  in  a  limited  time.31 

Under  the  decisions  of  the  English  courts,  a  carrier  may 
stipulate  for  exemption  from  negligence.  As  much  of  the 
foreign  carrying  trade  is  done  in  English  bottoms,  some 
smart  Englishman  inserted  in  their  bills  of  lading  a  clause 
known  as  the  "flag  clause,"  which  stipulated  that  the  con- 
tract of  carriage  should  be  governed  by  the  law  of  the  ves- 
sel's flag.  The  object  was  to  protect  the  English  carrier 
against  the  American  shipper.  The  American  courts  as  a 
rule  have  refused  to  enforce  this  clause,  looking  upon  it  as 
an  indirect  attempt  to  stipulate  against  negligence.32 

It  is  beyond  the  limits  of  this  treatise  to  discuss  the  con- 
struction of  the  various  exceptions  contained  in  bills  of 
lading,  or  the  acts  of  Congress  passed  in  recent  years  in 
regulation  of  common  carriers,  and  primarily  directed  at 
land  carriage,  though  often  affecting  sea  carriage. 

29  Hart  v.  Pennsylvania  R.  Co.,  112  U.  S.  331,  5  Sup.  Ct.  151,  28 
L.  Ed.  717 ;  Reid  v.  Fargo,  241  U.  S.  541,  36  Sup.  Ct.  712,  60  D.  Ed. 
1156. 

so  Humphreys  v.  Perry,  148  U.  S.  627,  13  Sup.  Ct.  711,  37  L.  Ed. 

587. 

3i  Southern  Express  Co.  v.  Caldwell,  21  Wall.  264,  22  L.  Ed.  556; 
Jamison  v.  New  York  &  P.  S.  S.  Co.  (D.  C.)  241  Fed.  3S9 ;  San  Gug- 
lielnio,  249  Fed.  5S9,  161  C.  C.  A.  514. 

32  Guildhall  (D.  C.)  58  Fed.  79G ;  Id.,  64  Fed.  867,  12  C.  C.  A.  445; 
Glenmavis  (D.  C.)  69  Fed.  472 ;  Victory  (D.  C.)  63  Fed.  640 ;  Kensing- 
ton, 183  U.  S.  263,  22  Sup.  Ct.  102,  46  L.  Ed.  190. 


§  82)  BILL  OF  LADING  165 

SAME— EXCEPTION  OF  PERILS  OF  THE  SEA 

82.  The  term  "perils  of  the  sea"  in  a  bill  of  lading  means  ac- 
cidents incident  to  navigation  which  are  unavoid- 
able by  the  use  of  ordinary  care. 

There  is  a  mass  of  learning  and  refinement  of  distinction 
as  to  the  proper  construction  of  that  universal  clause,  "per- 
ils of  the  sea."  It  means  such  accidents  incident  to  navi- 
gation as  are  unavoidable  and  are  the  sole  proximate  cause 
of  the  loss.  Mr.  Justice  Woods  rather  broadly  defines  the 
expression  as  "all  unavoidable  accidents  from  which  com- 
mon carriers  by  the  general  law  are  not  excused,  unless  they 
arise  from  act  of  God."  33 

The  accident  from  which  a  carrier  is  exempted  under  this 
clause  must  arise  independently  of  his  acts.  If  his  negli- 
gence co-operates,  the  carrier  is  responsible.34  Hence  there 
are  a  great  many  decided  cases  on  the  question  whether  the 
proximate  cause  of  the  loss  was  his  act  or  a  peril  of  the 
sea. 

The  G.  R.  BOOTH  35  is  instructive  on  this  point,  as  it 
reviews  the  American  decisions.  In  it  the  Supreme  Court 
held  that  a  loss  caused  by  an  explosion  of  detonators  which 
blew  a  hole  in  the  ship,  and  let  the  water  rush  in,  was  not 
a  peril  of  the  sea;  that  the  phrase  alluded  to  some  action 
of  wind  or  wave,  or  to  injury  from  some  external  object, 
and  did  not  cover  an  explosion  arising  from  the  nature  of 
the  cargo ;  and  that  the  proximate  cause  was  the  explosion, 
and  not  the  inrush  of  the  water. 

To  show  how  narrow  is  the  line  of  demarkation,  the  court 

§  82.  ss  Dibble  v.  Morgan,  1  Woods,  406,  Fed.  Cas.  No.  3.SS1. 
See,  also,  Southerland-Innes  Co.  v.  Thynas,  12S  Fed.  42,  64  C.  C.  A. 
116. 

34  Jeanie,  236  Fed.  463,  149  C.  C.  A.  515.  Compare  the  meaning 
of  the  clause  in  a  marine  insurance  policy,  ante,  PP-  75,  SO. 

3  5  171  U.  S.  450,  19  Sup.  Ct.  9,  43  L.  Ed.  234. 


166  CONTRACTS   OF  AFFREIGHTMENT  (Ch.  7 

distinguishes  this  from  Hamilton  v.  Pandorf,36  in  which  rats 
had  gnawed  a  lead  pipe,  which  permitted  water  to  escape 
and  cause  damage.  The  House  of  Lords  held  that  this  was 
a  peril  of  the  sea.  The  Supreme  Court  distinguished  it  on 
the  ground  that  the  water  escaped  gradually,  and  therefore 
was  the  proximate  cause. 

At  first  it  was  thought  that  a  collision  caused  by  the  neg- 
ligence of  either  of  the  two  vessels  was  not  a  peril  of  the 
sea,  as  a  human  agency  intervened.  But  it  is  the  better 
opinion  that,  if  the  carrying  ship  is  blameless,  a  collision  is 
a  peril  of  the  sea  as  to  her  and  her  cargo,  though  the  other 
ship  was  to  blame.37 

Although  the  measure  of  care  as  to  deck  cargoes  may  not 
be  as  rigid  as  to  others,  yet  even  there  a  stipulation  against 
perils  of  the  sea  does  not  protect  from  a  loss  caused  by 
negligence.38 


"CHARTER   PARTIES"    DEFINED 

83.  When  the  owners  of  a  vessel  hire  her  out,  the  contract 
of  hire  is  called  a  "charter  party,"  and  the  hirer  is 
called  a  "charterer." 

There  are  many  different  kinds  of  charter  party  in  use. 
The  owner  hires  his  ship  out  for  a  definite  time,  as  for  a 
month  or  a  year.  This  is  called  a  "time  charter."  39  A 
voyage  charter  is  one  in  which  lie  hires  her  out  for  a  definite 
trip,  as,  for  instance,  a  single  trip  between  two  points,  or 
a  round  trip  from  one  port  by  one  or  more  others  back  to  the 
initial  port. 

3  6  12  A.  C.  518.  Compare  Citta  di  Palermo,  226  Fed.  529,  141  C. 
C.  A.  285. 

37  Xantho,  12  A.  C.  503;    ante,  p.  70. 

as  Compania  de  Navigacioo  La  Flecha  v.  Brauer,  108  U.  S.  104,  18 
Sup.  Ct.  12,  42  L.  Ed.  398. 

g  83.     ::"  Mary  Adelaide  Randall,  .".9  O.  C.  A.  335,  9S  Fed.  895. 


§  83)  'charter  parties"  defined  167 

Charters  vary  also  according  to  the  manner  in  which  the 
hire  is  payable.  A  "lump  sum"  charter,  for  instance,  is  one 
in  which  the  charterer  pays  a  fixed  price  for  the  ship.  The 
owner  gets  his  money  whether  the  charterer  puts  any  cargo 
aboard  or  not.  If  he  can  sublet  room  to  shippers  at  good 
rates,  the  charterer  makes  a  profit;  otherwise,  a  loss.  It 
is  much  the  same  transaction  as  renting  a  house  and  trying 
to  sublet  the  rooms. 

A  tonnage  charter  is  where  the  charterer  pays  a  certain 
rate  per  registered  ton,  or  per  ton  of  dead  weight  carrying 
capacity.40 

Charters  vary  also  with  the  cargo  to  be  carried.  There 
are  grain  charters,  cotton  charters,  petroleum  charters,  coal 
charters,  charters  for  general  cargo,  and  many  others. 
Though  similar  in  the  main,  each  has  its  own  peculiar  pro- 
visions growing  out  of  the  needs  and  customs  of  the  par- 
ticular business. 

Again,  an  owner  may  charter  his  bare  ship,  leaving  the 
charterer  to  furnish  a  crew,  or  he  may  merely  charter  the 
use  of  the  ship,  furnishing  the  crew  himself.  This  distinc- 
tion is  important  if  a  question  should  arise  whether  the 
owner  or  the  charterer  is  responsible  for  any  tort  of  the 
crew.  If  the  crew  is  employed  by  the  owner,  then  they 
are  his  agents,  and  he  is  responsible  for  their  acts  within 
the  scope  of  their  employment.  If  they  are  employed  by 
the  charterer,  the  latter  is  responsible.41 

Charter  parties  are  usually  made  by  shipbrokers,  who 
keep  on  hand  printed  blanks  of  the  various  kinds,  and  exe- 
cute them  by  telegraphic  or  cable  authority. 

40  "Dead  weight,"  in  its  usual  acceptation,  means  the  abstract  lift- 
ing capacity,  not  deducting  dunnage.  Thomson  v.  Brocklebank, 
34  T.  L.  R.  284. 

«  Nicaragua  (D.  C.)  71  Fed.  723;  Bramble  v.  Culmer,  24  C.  C.  A. 
1S2,  78  Fed.  497 ;  Clyde  Commercial  S.  S.  Co.  v.  West  India  S.  S.  Co., 
169  Fed.  275,  94  C.  C.  A.  551;  North  Atlantic  Dredging  Co.  v.  Mc- 
Allister Steamboat  Co.,  202  Fed.  181,  120  C.  C.  A.  395;  Willie,  231 
Fed.  865,  146  C.  C.  A.  61. 


168  CONTRACTS   OF   AFFREIGHTMENT  (Cll.  7 

They  are  usually  in  writing,  but  may  be  by  parol.42 
They  have  grown  to  be  elaborate  in  their  provisions,  be- 
ing an  evolution  from  experience,  as  suggested  by  difficulties 
actually  arising.  On  the  other  hand,  the  additions  have 
frequently  been  made  by  laymen,  who  do  not  always  stop 
to  notice  how  the  condition  harmonizes  with  what  is  al- 
ready there.  Hence,  to  the  lawyers  and  judges,  they  appear 
informal  and  inartistic;  and  in  RAYMOND  v.  TYSON,43 
the  Supreme  Court  so  characterizes  them,  and  says  that  they 
are  to  be  liberally  construed  on  that  account,  placing  them 
in  the  category  of  legal  instruments  which  are  supposed  to 
be  drawn  by  that  constant  friend  of  the  legal  profession — 
the  man  who  is  inops  consilii. 

CONSTRUCTION  OF  CHARTER  PARTIES 

84.  A  charter  party  is  governed  by  the  ordinary  principles 
of  contract  law.  Provisions  which,  when  violated, 
defeat  the  venture,  absolve  the  injured  party  from 
the  contract.  Others,  not  so  vital,  give,  if  violated, 
a  claim  for  damages. 

A  charter  party  is,  after  all  but  an  ordinary  contract,  and 
is  governed  by  the  rules  that  apply  in  the  construction  of 
ordinary  contracts. 

Special  Provisions  in 

An  agreement  by  the  charterer  to  return  the  vessel  in  as 
good  order  as  received,  reasonable  wear  and  tear  excepted, 
or  similar  language,  imposes  on  him  the  absolute  obligation 
to  return  her,  independent  of  any  question  of  due  care  on 
his  part,  unless  the  failure  to  return  is  due  to  some  act  or 
default  of  the  vessel  owner.44 

42  James  v.  Bropliy,  18  C.  C.  A.  49,  71  Fed.  310;  Gormloy  v.  Thomp- 
son-Lockhnrt  Co.  (D.  C.)  234  Fed.  478,  479. 

43  17  How.  53,  15  L.  Ed.  47.  See,  also,  Disney  v.  Furncss,  Withy 
&  Co.  (D.  (".i  7! i  Fed.  810,  810. 

§  84.    4*  Sun  Printing  &  Tub.  Ass'n  v.  Moore,  183  U.  S.  042,  22 


§  84)  CONSTRUCTION    OF    CHARTER    PARTIES  169 

In  LOWBER  v.  BANGS,45  the  instrument  contained  a 
provision  that  the  vessel  (which,  as  is  often  the  case,  was 
not  at  the  loading  port  when  the  charter  was  effected), 
should  proceed  to  the  loading  port  "with  all  possible  dis- 
patch." She  did  not  do  so.  The  court  held  that,  on  account 
of  the  necessity  of  promptness  in  commercial  enterprises, 
this  provision  was  not  a  collateral  clause,  whose  breach 
would  give  rise  merely  to  an  action  for  damages,  but  that  it 
was  a  warranty,  whose  breach  avoided  the  contract  and  re- 
leased the  charterers.  It  would  also  give  a  right  of  action 
for  damages  against  the  owners.46  And  a  delay  in  arriving, 
which  made  it  so  late  in  the  season  as  to  prevent  the  char- 
terer from  obtaining  insurance,  the  vessel's  agent  having 
represented  that  she  would  arrive  in  time,  absolves  the 
charterer.47 

Quite  similar  to  this  was  Davison  v.  Von  Lingen.48  Here 
the  charter  party  contained  a  provision  that  the  vessel  had 
"now  sailed  or  about  to  sail  from  Benizaf."  In  fact,  she  was 
only  one-third  loaded,  and  did  not  sail  for  some  time.  The 
court  held  that  the  charterer  could  refuse  to  load  her  on 
arrival,  and  could  recover  the  extra  cost  of  chartering  an- 
other vessel  to  carry  his  cargo.  The  charter  party  is  given 
in  the  opinion. 

The  statement  of  a  vessel's  registered  tonnage  near  the 
beginning  of  the  usual  form  of  charter  party  is  not  neces- 
sarily a  warranty,  but  may  be  mere  description.  In  Watts 
v.  Camors,49  the  description  was,  "The  steamship  Highbury, 

Sup.  Ct.  240,  46  L.  Ed.  366;  Hills  v.  Leeds  (D.  C.)  149  Fed.  878; 
Leeds  v.  Hills,  158  Fed.  1020,  85  C.  C.  A.  489;  Hahlo  v.  Benedict,  216 
Fed.  303,  132  C.  C.  A.  447. 

452  Wall.  728,  17  L.  Ed.  768.  See,  also,  Giuseppe  v.  Manufac- 
turers' Export  Co.  (D.  C.)  124  Fed.  663. 

-to  Sanders  v.  Munson,  20  C.  C.  A.  5S1,  74  Fed.  649;  Prussia  (D.  C.) 
100  Fed.  4S4. 

4  7  Oades  v.  Pfohl  (D.  C.)  104  Fed.  998. 

4  8  113  U.  S.  40,  5  Sup.  Ct.  346,  28  L.  Ed.  885. 

4 »  115  TJ.  S.  353,  6  Sup.  Ct  91,  29  L.  Ed.  406. 


170  CONTRACTS    OF   AFFREIGHTMENT  (Cll.  7 

of  the  burden  of  1,100  tons  or  thereabouts  registered  meas- 
urement," and  there  was  a  provision  that  she  should  carry 
"a  full  and  complete  cargo,  say  about  11,500  quarters  of 
wheat  in  bulk."  The  registered  tonnage  was  really  1203,  a 
fact  unknown  to  either  party.  The  court  held  that  the  des- 
ignation of  the  ship  by  name  and  the  stipulation  as  to  the 
cargo  negatived  the  idea  that  the  statement  as  to  tonnage 
was  a  warranty,  and  that  the  charterers  were  not  justified  in 
refusing  to  load  her. 

The  John  H.  Pearson  50  was  a  fruit  charter,  in  which  a 
vessel  from  Gibralter  to  Boston  engaged  to  "take  the  North- 
ern passage."  The  court  held  that  this  was  a  term  of  art, 
and,  if  none  such  was  known,  she  should  go  through  the 
coolest  waters  to  her  destination. 

Culliford  v.  Gomila  51  contains  a  grain  charter  party  in  the 
report.  In  it  the  vessel  guarantied  to  take  10,000  quarters 
of  grain.  The  charterers,  however,  did  not  stipulate  any 
definite  day  on  which  she  was  to  enter  upon  the  charter  par- 
ty, or  any  definite  day  when  she  was  to  commence  loading. 
When  loaded  she  contained  only  9,635  quarters,  and  the 
parties  to  whom  the  charters  had  sold  the  full  cargo  of 
10,000  quarters  refused  to  take  it,  the  market  having  fallen. 
Afterwards,  the  ship,  by  removing  more  coal  and  water  bal- 
last, took  the  full  amount.  The  court  held  that  she  had 
fulfilled  her  contract,  and  was  not  liable  to  the  charterers 
for  their  loss. 

•  In  the  Gazelle,52  the  charter  party  contained  a  clause  that 
the  vessel  should  be  ordered  to  a  "safe  *  *  *  port,  or 
as  near  thereto  as  she  can  safely  get,  and  always  lay  and 
discharge  afloat."  The  charterers  ordered  her  to  a  port  hav- 
ing a  bar  at  its  mouth,  which  she  could  not  cross,  the  only 

60  121  U.  S.  469,  7  Sup.  Ct.  1008,  30  L.  Ed.  979. 

oi  128  U.  S.  135,  9  Sup.  Ct.  50,  32  L.  Ed.  381. 

"  128  U.  S.  474,  9  Sup.  Ct.  139,  32  L.  Ed.  496.  See,  also,  Carbon 
Slate  Co.'v.  Ennis,  11  I  Fed.  260,  52  C.  C.  A.  146;  Manchester  Liners 
v.  Virginia-Carolina  Chemical  Co.,  204  Fed.  564,  123  C.  C.  A.  90. 


§  85)  CONDITIONS   IMPLIED   IN    CHARTER    PARTIES  171 

anchorage  outside  the  bar  being  in  the  open  sea.  The  mas- 
ter refused  to  go.  The  court  upheld  him,  and  ruled  also 
that  evidence  of  a  custom  to  anchor  and  discharge  outside 
the  bar  was  inadmissible  against  the  express  provisions  of 
the  contract. 

But  such  an  agreement  means  that  a  ship  must  be  able  to 
reach  her  loading  dock  without  mutilation.  A  ship  with 
steel  masts,  which  cannot  be  temporarily  lowered  in  order 
to  enable  her  to  pass  under  a  bridge,  is  not  required  to  take 
them  down ;  but  the  cost  of  the  lightering  entailed  falls  on 
the  charterer.63 

CONDITIONS  IMPLIED  IN  CHARTER  PARTIES  OF 

SEAWORTHINESS  AND  AGAINST 

DEVIATION 

85.  In  contracts  of  charter  party  there  is  an  implied  condi- 
tion of  seaworthiness  and  against  deviation. 

Although  the  language  in  the  forms  now  in  use  frequent- 
ly covers  it,  yet  there  are  certain  conditions  implied  in  a 
charter  party,  in  the  absence  of  express  provisions  to  the 
contrary.    They  are : 

1.  That  the  ship  is  seaworthy.  # 

Charter  parties  usually  contain  a  provision  that  the  vessel 
is  "tight,  stanch,  and  strong,  and  in  every  way  fitted  for  the 
voyage."  This  warranty  of  seaworthiness  is  a  rigid  one,  and 
means  that  the  vessel  is  actually  seaworthy,  not  merely 
that  her  owner  has  done  his  best  to  make  her  so.  It  applies 
not  only  to  the  beginning  of  loading,  but  to  the  time  of 
sailing  as  well,  and  the  vessel  will  be  liable  for  damages 
caused  by  unseaworthiness  at  starting,  or  by  unseaworthi- 
ness developing  on  the  voyage  from  prior  causes  not  cov- 
ered by  exceptions,  or  from  causes  which  he  could  repair. 

ss  Mencke  v.  Cargo  of  Java  Sugar,  187  U.  S.  248.  23  Sup.  Ct.  86, 
47  L.  Ed.  163. 


172  CONTRACTS   OF   AFFREIGHTMENT  (Ch.  7 

In  the  CALEDONIA,54  a  vessel  with  a  cattle  cargo  broke 
her  shaft  at  sea,  thereby  greatly  lengthening  the  voyage, 
and  causing  much  loss  in  their  quality.  The  court  held  the 
vessel  responsible,  though  the  breakage  arose  from  a  latent 
defect. 

In  STEEL  v.  STATE  LINE  S.  S.  CO.,55  a  lower  port- 
hole was  left  insufficiently  fastened.  Sea  water  came 
through  and  injured  the  cargo.  The  court  held  that  if  this 
was  the  condition  at  sailing  it  was  a  violation  of  the  warran- 
ty of  seaworthiness.    This  case  is  specially  instructive. 

In  Cohn  v.  Davidson,56  the  vessel  was  seaworthy  when 
she  commenced  to  load,  but  unseaworthy  when  she  sailed. 
The  court  held  that  this  was  a  breach  of  the  warranty. 

In  Worms  v.  Storey,57  a  vessel  which  was  seaworthy  at 
starting  became  unseaworthy  during  the  voyage  from  causes 
excepted  in  the  contract.  But  she  put  into  port,  where  she 
could  have  repaired,  and  did  not.  She  was  held  liable  for  a 
breach  of  the  warranty. 

This  doctrine  applies  not  only  to  structural  defects,  but 
to  deficiencies  of  equipment,  as,  for  instance,  an  insufficient 
supply  of  coal  for  the  voyage,  or  insufficient  ballast.58  But 
if  the  charterers  examine  the  vessel  before  chartering  her, 
and  accept  her,  they  cannot  complain  of  such  defects  as  they 
coald  reasonably  have  discovered,  though  they  still  may 
complain  of  latent  defects.59 

The  obligation  of  seaworthiness  and  fitness  for  the  voy- 
age requires  that  the  vessel  is  reasonably  fit  to  carry  safely 

§  So.     6  4  157  U.  S.  124,  15  Sup.  Ct.  537,  39  L.  Ed.  644. 

en  3  A.  C.  72. 

sc  2  Q.  B.  D.  455. 

57  ii  Exeh.  427. 

5J  Yortigern,  [1809]  P.  140;  Weir  v.  Steamship  Co.,  [1900]  A. 
C.  525 ;    Mclver  v.  Tate  Steamers,  Ltd.,  [1903]  1  K.  B.  362. 

59  Waterhouse  v.  Rock  Island  Alaska  Min.  Co.,  38  C.  C.  A.  2S1,  97 
Fed.  466 ;  Sanford  &  Brooks  Co.  v.  Columbia  Dredging  Co.,  177  Fed. 
878,  101  C.  C.  A.  92. 


§  85)  CONDITIONS   IMPLIED   IN    CHARTER   PARTIES  173 

and  without  damage  the  particular  cargo  which  she  under- 
takes to  transport.60 

This  applies,  not  only  to  defects  which  might  render  the 
voyage  dangerous,  but  to  unfitness  to  receive  or  properly 
care  for  cargo.61 

Defects  in  the  refrigerating  apparatus  are  a  common  ex- 
ample of  this.62 

2.  That  the  vessel  will  commence  and  prosecute  the  voy- 
age with  reasonable  diligence  and  without  unnecessary  de- 
viation. 

Charter  parties  cover  this  by  a  stipulation  that  the  vessel, 
if  not  at  the  loading  port.,  shall  "at  once  sail  and  proceed" 
thereto,  and  shall  when  loaded  "proceed  with  all  practicable 
dispatch."  If  she  fails  to  do  so  in  the  first  instance,  the 
charterer  may,  as  decided  in  the  cases  of  Lowber  v.  Bangs 
and  Davison  v.  Von  Lingen,  above  cited,  refuse  to  load  her, 
and  have  his  action  for  damages.  If  by  excepted  perils  she 
is  so  delayed  that  the  commercial  enterprise  is  frustrated, 
the  charterer  may  refuse  to  load  her,  but  in  such  case  he 
would  have  no  action  for  damages.63  If  by  deviation  the 
charterer  suffers  loss,  he  can  sue  for  damages.64 

The  vessel  is  not  obligated  to  proceed,  if,  after  she  starts, 
conditions  arose  which  would  render  it  probable  in  the 
judgment  of  a  prudent  master  or  owner  that  she  would  be 
captured;    war  being  imminent.65 

eo  Jeanie,  236  Fed.  463,  149  O.  C.  A.  515. 

ei  Church  Cooperage  Co.  v.  Pinkney,  170  Fed.  266,  95  C.  C.  A.  462. 
6  2  Southwark,  191  U.  S.  1,  24  Sup.  Ct.  1,  48  L.  Ed.  65. 
6  3  Jackson  v.  Insurance  Co.,  L.  R.  10  C.  P.  125. 
6  4  Scaranianga  v.  Stamp,  5  C.  P.  D.  295. 

es  Kronprinzessin  Cecilie,  244  U.  S.  12,  37  Sup.  Ct.  490,  61  L.  Ed. 
960. 


174  CONTRACTS   OF   AFFREIGHTMENT  (Ch.  7 


CANCELLATION  CLAUSE  IN  CHARTER  PARTIES 

86.  If  the  vessel  does  not  arrive  by  the  date  specified,  the 
charterer  may  refuse  to  load,  though  the  delay  was 
due  to  excepted  perils.  If  she  does  not  arrive  with- 
in a  reasonable  time,  she  is  liable  for  damages, 
though  she  arrives  before  the  canceling  date. 

The  ship's  first  duty  is  to  proceed  to  the  loading  port 
with  reasonable  diligence.  To  enforce  this  obligation,  a 
clause  called  the  "cancellation  clause"  is  inserted.  It  pro- 
vides that,  if  the  vessel  does  not  arrive  at  the  loading  port 
ready  to  load  by  a  given  date,  all  her  holds  being  clear,  the 
charterers  may  cancel.  Under  this  the  charterers  may  can- 
cel, though  the  delay  was  caused  by  excepted  perils.66 

If  the  canceling  clause  is  worded  as  above,  she  must  not 
only  arrive  by  the  canceling  date,  but  she  must  also  be  ready 
for  cargo  by  that  date.  Her  ballast  and  dunnage  must  be 
out,  and  all  the  spaces  to  which  the  charterer  is  entitled 
must  be  cleared  from  the  effects  of  former  cargoes  and  ready 
for  use.  She  must  be  in  such  condition  as  to  satisfy  the 
underwriter's  inspector  and  all  reasonable  requirements 
for  avoiding  injury  to  cargo.67 

As  this  clause  is  for  the  benefit  of  the  charterer,  it  does 
not  exempt  the  ship  from  her  obligation  to  proceed  to  the 
loading  port  with  reasonable  dispatch.    If  she  loiters  by  the 

§  86.     66  Smith  v.  Dart,  14  Q.  R.  D.  105. 

67  Gn-ves  v.  Volkart,  1  C.  &  E.  309;  Crow  v.  Myers  (D.  C.)  41  Fed. 
806;  Stanton  v.  Richardson,  45  L.  J.  Ex.  78;  Disney  v.  Furness, 
Withy  &  Co.  (D.  C.)  79  Fed.  810:  In  re  2,098  Tons  of  Coal,  135  Fed. 
317,  67  C.  C.  A.  671;  L.  N.  Dantzler  Lumber  Co.  v.  Churchill,  136 
Fed.  560,  69  C.  C.  A.  270.  But  the  charterer  cannot  claim  the  right 
to  cancel  on  accounl  of  a  failure  to  be  ready  caused  by  his  obstruc- 
tive tactics.  Bonanno  v.  Tweedie  Trading  Co.  (D.  C.)  117  Fed.  991; 
Id.,  130  Fed.  448,  64  C.  C.  A.  650. 


§  87)  LOADING  UNDER   CHARTER   PARTIES  175 

wayside,  she  is  responsible  to  the  charterer  in  damages, 
though  she  should  arrive  before  the  canceling  date.68 

The  clause  does  not  cancel  the  charter  proprio  vigore,  but 
merely  gives  the  charterer  an  option.  He  must  exercise  it 
within  the  time  allowed,  or  he  waives  his  right.69 

The  charter  party  usually  provides  that  the  vessel  can 
only  be  ordered  to  a  safe  port,  where  she  can  lie  always 
afloat.  This  provision  is  common  both  to  loading  and  dis- 
charging. It  means  safely  afloat  when  loaded.  Under  it  a 
ship  is  not  required  to  lighter  her  cargo,  or  lie  at  a  danger- 
ous anchorage.70 

LOADING  UNDER  CHARTER  PARTIES 

87.  Delay  beyond  the  time  allowed  entitles  the  ship  to  de- 
murrage. Sundays  and  legal  holidays  axe  then 
counted  under  the  ordinary  form  of  charter  party. 

The  charter  party  provides  that  the  charterers  have  a  cer- 
tain number  of  days  for  loading,  Sundays  and  legal  holidays 
excepted,  and  must  pay  demurrage  at  a  certain  rate  per 
ton  per  day  if  vessel  is  longer  detained.  If  the  clause  is 
worded  in  this  manner,  demurrage  is  payable  for  Sundays 
and  legal  holidays.71 

Sundays  and  holidays  are  excluded  in  counting  the  lay 
days,  but  included  in  estimating  the  demurrage,  because  in 

c s  March  (D.  C.)  25  Fed.  106;  McAndrcw  v.  Adams,  1  Bing.  N. 
C.  29.  27  E.  C.  L.  297 ;    Heller  v.  Pendleton  (D.  C.)  148  Fed.  1014. 

es  W.  &  C.  T.  Jones  S.  S.  Co.  v.  Barnes-Ames  Co.,  244  Fed.  116, 
156  C.  C.  A.  544. 

to  Gazelle,  12S  U.  S.  474,  9  Sup.  Ct.  139,  32  L.  Ed.  496;  Shield  v. 
Wilkin,  5  Exch.  304 ;    Alhambra,  6  P.  D.  68. 

n  Brown  v.  Johnson,  10  M.  &  W.  331;  Red  "R"  S.  S.  Co.  v.  North 
American  Transport  Co.,  91  Fed.  168,  33  C.  C.  A.  432;  Wallace  v. 
Cargo  of  292,000  Feet  of  Pine  Boards  (D.  C.)  224  Fed.  993.  But,  if 
the  excepted  days  are  actually  used,  they  count  in  the  absence  of  a 
contrary  agreement.  Whittall  v.  Rathken's  Shipping  Co.  Ltd.,  [1907] 
1  K.  B.  783;    Branchelow  S.  S.  Co.  v.  Lamport,   [1907]  1  K.  B.  787. 


176  CONTRACTS   OP   AFFREIGHTMENT  (Ch.  7 

such  port  work  they  cannot  be  used.  But  demurrage  is  an 
allowance  for  the  time  during  which  the  ship  would  other- 
wise be  on  a  voyage,  and,  as  she  does  not  stop  her  voyage 
for  Sundays,  every  day  should  count.  The  same  reasoning 
applies  to  dispatch  money,  which  is  an  allowance  made  the 
charterer  for  loading  in  less  time  than  that  permitted  by 
the  charter.72 

The  term  "working  days"  means  a  calendar  day  on  which 
the  law  permits  work  to  be  done.  It  excludes  Sundays  and 
legal  holidays,  but  does  not  credit  the  charterer  with  days 
when  the  weather  is  too  bad  to  work.73 

In  these  latter  days,  a  stipulation  against  strikes  has 
been  found  quite  convenient.74 

Under  lump-sum  charters,  a  fruitful  source  of  controversy 
is  as  to  the  spaces  on  the  ship  which  the  charterer  may  fill. 
He  is  entitled  to  all  spaces  where  cargo  can  be  put,  except 
the  spaces  necessary  for  the  crew,  coal,  tackle,  apparel,  pro- 
visions, and  furniture.  The  variety  in  the  build  of  vessels 
renders  it  impossible  to  lay  down  any  general  rule.  A  good 
example  of  such  controversies  is  Crow  v.  Myers.75 

The  loading  is  largely  governed  by  the  custom  of  the 
port,  except  where  inconsistent  with  the  written  contract.70 

~  2  Muirfield  (D.  C.)  174  Fed.  75 ;  Fargrove  Nav.  Co.  v.  Laviuo  & 
Co.  (D.  C.)  191  Fed.  523 ;  Pool  Shipping  Co.  v.  Samuel,  200  Fed.  36, 
118  C.  C.  A.  264. 

7  3  Sorensen  v.  Keyser,  52  Fed.  163,  2  C.  C.  A.  650;  Wood  v.  Keyser 
(D.  C.)  84  Fed.  6S8;  Id.,  87  Fed.  1007,  31  C.  C.  A.  35S.  The  proper 
language  for  the  charterer  to  use  in  order  to  get  the  benefit  of  hud 
weather  is  "weather  working  days."  Bennetts  v.  Brown,  [1908]  1 
K.  B.  490. 

74  Marshall  v.  McNear  (D.  C.)  121  Fed.  42S;  Pyman  S.  S.  Co.  v. 
Mexican  Central  R.  Co.,  1C9  Fed.  2S1,  91  C.  C.  A.  557;  Hulthen  v. 
Stewart,  [1902]  2  K.  B.  199;    [1903]  A.  C.  389. 

78  (D.  C.)  41  Fed.  806.  See,  also,  Kaupanger  (D.  C.)  241  Fed.  702. 
But  tlif  vessel  may  carry  only  so  much  coal  as  is  reasonably  nec- 
iry  for  the  voyage.  Darling  v.  Raeburn,  [1906]  1  K.  B.  572; 
[1907]  1  K.  b.  s;»;. 

:<:  Moore  v.   F.    S.,   196  U.  S.   157.  25  Sup.  Ct.  202,  49  L.   Ed.  428. 


§  88)  CHARTER  PARTY  DOCUMENTS  177 

EXECUTION    OF    NECESSARY    DOCUMENTS 
UNDER  CHARTER  PARTIES 

88.  The  master  must  sign  the  bills  of  lading  and  other  nec- 
essary documents. 

Most  charter  parties  require  the  master  to  sign  bills  of 
lading  as  presented  by  the  charterer  for  the  different  parts 
of  the  cargo  as  received  on  board,  and  drafts  for  the  dis- 
bursements made  by  the  charterers  to  pay  the  vessel's 
bills  when  in  port,  and  for  the  difference  between  the  char- 
ter party  freight  and  the  freight  as  per  bills  of  lading.  All 
these  are  important  documents.  The  amount  necessary  to 
clear  a  single  large  ship  runs  up  into  the  tens  of  thousands. 
As  charterers  with  a  large  business  may  have  several  on 
the  berth  loading  at  once,  the  capital  necessary  for  their 
use  would  be  enormous.  Hence  these  documents  are  needed 
by  him  and  his  shippers  for  obtaining  discounts  from  his 
banker.  Thus,  a  man  who  sees  an  opportunity  to  ship  a 
thousand  bales  of  cotton  to  Liverpool,  where  he  can  sell  it 
at  an  advance,  can  buy  it  on  this  side,  engage  freight  room 
from  some  charterer  who  has  a  ship  in  port  or  expected,  get 
a  bill  of  lading  for  it  to  order,  draw  on  his  Liverpool  con- 
signee, attaching  the  bill  of  lading  to  the  draft,  and  get  his 
draft  at  once  discounted  at  his  bank. 

Under  the  usage  of  trade,  the  freight  is  payable  at  the 
port  of  discharge,  and  is  collected  by  the  vessel  owner.  If 
the  charterer  has  sublet  the  room  to  different  shippers  for 
more  than  he  has  agreed  to  pay  the  owner  for  the  use  of 
his  ship,  the  owner  will  owe  him  the  difference.  This  is 
calculated  at  the  loading  port  on  the  completion  of  the 
loading,  and  the  master  gives  the  charterer  a  draft  on  his 
owners  for  the  amount.  If  the  cargo  has  started  from  in- 
land points,  and  the  charterer  has  to  pay  accrued  charges 
of  previous  carriers  (for  the  last  carrier  pays  the  charges 
Hughes,Adm.(2d  Ed.)— 12 


178  CONTRACTS   OP  AFFREIGHTMENT  (Ch.  7 

of  the  previous  carriers),  the  draft  may  be  very  great;  but, 
if  it  all  starts  from  the  loading  port,  so  narrow  are  the 
margins  of  profit  in  modern  trade  that  the  draft  is  small.  A 
recalcitrant  captain  may  be  compelled  to  sign  these  im- 
portant papers.77 


CESSER   CLAUSE   IN   CHARTER   PARTIES 

89.  Under  the  cesser  clause,  the  settlement  between  ship 
and  charterer  must  be  made  at  the  loading  port,  and 
the  shipper  looks  to  the  ship  alone,  and  not  to  the 
charterer. 

A  common  provision  in  charter  parties  is  the  clause 
known  as  the  "cesser"  clause.  Its  usual  language  is  "owner 
to  have  a  lien  on  the  cargo  for  freight,  dead  freight,  and  de- 
murrage, charterer's  liability  to  cease  when  cargo  shipped.' 
It  is  strictly  construed.  It  does  not  operate  to  release  the 
ship,  and  it  releases  the  charterer  from  liability  for  future 
occurrences  alone,  not  for  past  occurrences.78 

The  object  is  to  end  the  charterer's  liability  at  the  loading 
port  and  save  him  from  a  lawsuit  at  a  distant  point.  To 
that  end  the  bills  of  lading  are  given  direct  by  the  ship  to 
the  shipper,  and  all  disputes  as  to  demurrage,  dead  freight, 
etc.,  at  the  loading  port,  are  settled  before  the  vessel  sails, 
while  the  lien  given  to  the  owner  protects  his  freight  or 

§  88.  7  7  Reynolds  v.  The  Joseph,  2  Hughe?,  58,  Fed.  Cas.  No. 
11,730.  See,  in  general,  as  to  these  documents.  Kruger  v.  Moel 
Tryvan  S.  S.  Co.,  [1007]  A.  C.  272 ;  London  Transport  Co.  v.  Trech- 
man,  [1904]  1  K.  B.  635. 

§  80.  78KISH  v.  CORY,  L.  R.  10  Q.  B.  553;  Iona,  SO  Fed.  933, 
26  C.  C.  A.  261 ;  Schmidt  v.  Keyser,  S8  Fed.  700,  32  C.  C.  A.  121 : 
nan  v.  Burrill,  170  U.  S.  100.  21  Sup.  Ct.  3S,  45  I..  Ed.  106; 
Steamship  Rutherglen  Co.  v.  Boward  Houlder  &  Partners,  203  Fed. 
848,  122  C.  C.  A.  166;  Elvers  v.  W.  R.  Grace  &  Co.,  211  Fed.  705, 
157  C.  C.  A.  153;   Seguranca.  250  Fed.  10,  162  C.  C.  A.  191. 


§  89)  CESSER    CLAUSE   IN    CHARTER    PARTIES  179 

demurrage  at  the  port  of  discharge.  Hence,  if  the  owner 
gives  the  shipper  a  clean  bill  of  lading  at  the  loading  port, 
he  cannot  hold  the  goods  for  demurrage ;  for  the  shipper 
is  not  bound  by  the  charter  party.  He  must  collect  his  de- 
murrage, or  reserve  a  lien  for  it,  by  proper  language,  in  his 
bill  of  lading.79 

7  9  Turner  v.  Haji,  [1004]  A.  C.  S26. 


180  THE   HARTEK  ACT  (Ch.  8 


CHAPTER  VIII 

OF  WATER  CARRIAGE  AS  AFFECTED  BY  THE  HARTER  ACT 
OF  FEBRUARY  13,  1893  (27  Stat.  415  [U.  S.  Conip.  St 
§§  8029-8035]) 
90-91.  •  Policy  of  Act 

92.  Act  Applicable  Only  between  Vessel  Owner  and  Shipper. 

93.  Vessels  and  Voyages  to  which  Act  is  Applicable. 

94.  Relative  Measure  of  Obligation  as  to  Handling  the  Cargo 

and  Handling  the  Ship. 

95.  [Necessity  of  Stipulation  to  Reduce  Liability  for  Unseaworthi- 

ness. 

POLICY  OF  ACT 

90.  The  act  materially  modifies  the  law  relating  to  the  car- 

riage of  goods. 

91.  It  forbids  any  stipulation  against  negligence  in  prep- 

aration for  the  voyage  or  in  delivery,  or  unsea- 
worthiness below  the  measure  of  due  diligence. 

The  discussion  in  the  preceding  chapter  has  been  as  to 
the  liability  of  carriers  under  the  general  decisions  of  'the 
courts,  independent  of  statute.  As  has  been  seen,  stipu- 
lations against  negligence  are  forbidden  by  the  preponder- 
ance of  American  decisions,  but  allowed  by  the  English  de- 
cisions. As  a  large  proportion  of  the  foreign  carrying  trade 
is  conducted  in  English  vessels,  the  effect  of  the  English 
decisions  is  to  allow  vessel  owners  to  fritter  away  their 
liability  by  stipulation,  and  this  placed  American  vessel 
owners  at  a  disadvantage  in  the  close  competition  between 
them.  The  Harter  Act  was  a  compromise  between  the 
shipping  and  carrying  interests,  and  though  it  exempts  car- 
rying vessels  from  liability  for  many  acts  of  negligence  for 
which  they  were  responsible  formerly,  and  against  which 
they  could  not  stipulate,  it  at  the  same  time  works  in  favor 
of  the  shipper  by  forbidding  many  stipulations  which  under 


§§  90-91)  POLICY  OF  ACT  181 

the  English  law  were  valid.  The  general  policy  of  the 
law  is  that  the  vessel  owner  must  take  the  care  required  of 
experts  in  that  business  in  all  matters  relating  to  the  load- 
ing, stowage,  custody,  care,  and  proper  delivery  of  the 
goods  intrusted  to  it,  and  must  exercise  due  diligence  to 
make  the  vessel  seaworthy  in  all  the  particulars  which  have 
been  held  to  constitute  seaworthiness;  and  that,  if  these 
requirements  are  met  entirely,  neither  the  vessel  nor  her 
owners  shall  be  responsible  even  for  faults  or  errors  in  nav- 
igation, nor  for  many  such  grounds  of  liability  as  have  been 
held  by  the  American  decisions  to  be  validly  stipulated 
against  in  bills  of  lading. 

The  full  text  of  the  act  is  as  follows : 

"Chapter  105.  An  act  relating  to  navigation  of  vessels, 
bills  of  lading,  and  to  certain  obligations,  duties,  and 
rights  in  connection  with  the  carriage  of  property. 

"Be  it  enacted  by  the  senate  and  house  of  representatives 
of  the  United  States  of  America  in  congress  assembled, 
that  it  shall  not  be  lawful  for  the  manager,  agent,  master 
or  owner  of  any  vessel  transporting  merchandise  or  prop- 
erty from  or  between  ports  of  the  United  States  and  for- 
eign ports  to  insert  in  any  bill  of  lading  or  shipping  docu- 
ment any  clause,  covenant,  or  agreement  whereby  it,  he, 
or  they  shall  be  relieved  from  liability  for  loss  or  damage 
arising  from  negligence,  fault,  or  failure  in  proper  loading, 
stowage,  custody,  care,  or  proper  delivery  of  any  and  all 
lawful  merchandise  or  property  committed  to  its  or  their 
charge.  Any  and  all  words  and  clauses  of  such  import 
inserted  in  bills  of  lading  or  shipping  receipts  shall  be  null 
and  void  and  of  no  effect. 

"Sec.  2.  That  it  shall  not  be  lawful  for  any  vessel  trans- 
porting merchandise  or  property  from  or  between  ports  of 
the  United  States  of  America  and  foreign  ports,  her  own- 
er, master,  agent,  or  manager,  to  insert  in  any  bill  of  lading 
or  shipping  document  any  covenant  or  agreement  whereby 
the  obligation  of  the  owner  or  owners  of  said  vessel  to  ex- 


182  THE   HARTER   ACT  (Ch.  8 

ercise  due  diligence,  properly  equip,  man,  provision,  and 
outfit  said  vessel,  and  to  make  said  vessel  seaworthy  and 
capable  of  performing'  her  intended  voyage,  or  whereby 
the  obligations  of  the  master,  officers,  agents,  or  servants 
to  carefully  handle  and  stow  her  cargo  and  to  care  for  and 
properly  deliver  the  same,  shall  in  any  wise  be  lessened, 
weakened  or  avoided. 

"Sec.  3.  That  if  the  owner  of  any  vessel  transporting 
merchandise  or  property  to  or  from  any  port  in  the  United 
States  of  America  shall  exercise  due  diligence  to  make  the 
said  vessel  in  all  respects  seaworthy  and  properly  manned, 
equipped  and  supplied,  neither  the  vessel,  her  owner  or 
owners,  agent  or  charterers,  shall  become  or  be  held  re- 
sponsible for  damages  or  loss  resulting  from  faults  or  er- 
rors in  navigation  or  in  the  management  of  said  vessel,  nor 
shall  the  vessel,  her  owner  or  owners,  charterers,  agent,  or 
master  be  held  liable  for  losses  arising  from  dangers  of  the 
sea  or  other  navigable  waters,  acts  of  God,  or  public  ene- 
mies, or  the  inherent  defect,  quality  or  vice  of  the  thing 
carried,  or  from  insufficiency  of  package,  or  seizure  under 
legal  process,  or  for  loss  resulting  from  any  act  or  omission 
of  the  shipper  or  owner  of  the  goods,  his  agent  or  repre- 
sentative, or  from  saving  or  attempting  to  save  life  or  prop- 
erty at  sea,  or  from  any  deviation  in  rendering  such  service. 

"Sec.  4.  That  it  shall  be  the  duty  of  the  owner  or  owners, 
masters,  or  agent  of  any  vessel  transporting  merchandise 
or  property  from  or  between  ports  of  the  United  States 
and  foreign  ports,  to  issue  to  shippers  of  any  lawful  mer- 
chandise a  bill  of  lading  or  shipping  document,  stating, 
among  other  things,  the  marks  necessary  for  identification, 
number  of  packages  or  quantity,  stating  whether  it  be  car- 
rier's or  shipper's  weight,  and  apparent  order  or  condition 
of  such  merchandise  or  property  delivered  to  and  received 
by  the  owner,  master,  or  agent  of  the  vessel  for  transporta- 
tion, and  such  document  shall  be  prima  facie  evidence  of 
the  receipt  of  the  merchandise  therein  described. 


§  92)      APPLICABLE  ONLY  BETWEEN  OWNER  AND  SHIPPER       183 

"Sec.  5.  That  for  a  violation  of  any  of  the  provisions  of 
this  act  the  agent,  owner,  or  master  of  the  vessel  guilty  of 
such  violation,  and  who  refuses  to  issue  on  demand  the 
bill  of  lading  herein  provided  for,  shall  be  liable  to  a  fine  not 
exceeding  two  thousand  dollars.  The  amount  of  the  fine 
and  costs  for  such  violation  shall  be  a  lien  upon  the  vessel 
whose  agent,  owner,  or  master  is  guilty  of  such  violation, 
and  such  vessel  may  be  libeled  therefor  in  any  district  court 
of  the  United  States  within  whose  jurisdiction  the  vessel 
may  be  found.  One-half  of  such  penalty  shall  go  to  the 
party  injured  by  such  violation  and  the  remainder  to  the 
government  of  the  United  States. 

"Sec.  6.  That  this  act  shall  not  be  held  to  modify  or  re- 
peal sections  forty-two  hundred  and  eighty-one,  forty-two 
hundred  and  eighty-two,  and  forty-two  hundred  and  eighty- 
three  of  the  Revised  Statutes  of  the  United  States,  or  any 
other  statutes  defining  the  liability  of  vessels,  their  owners 
or  representatives. 

"Sec.  7.  Sections  one  and  four  of  this  act  shall  not  apply 
to  the  transportation  of  live  animals. 

"Sec.  8.  This  act  shall  take  effect  from  and  after  the  first 
dav  of  July,  eighteen  hundred  and  ninety-three.  Approved 
February  13,  1893."  x 

ACT  APPLICABLE  ONLY  BETWEEN  VESSEL 
OWNER  AND  SHIPPER 

92.  The  act  is  intended  only  to  regulate  the  relations  be- 
tween vessel  and  shipper,  and  not  to  affect  the  re- 
lations of  either  to  third  parties. 

In  referring  to  the  act  generally,  it  is  first  to  be  observed, 
when  the  title  and  all  of  its  provisions  are  taken  together, 
that  it  is  only  intended  to  affect  the  relations  between  ves- 

i  27  Stat.  445  (U.  S.  Comp.  St.  §§  8029-S035). 


184  THE  HARTER  ACT  (Ch.  8 

sel  owner  and  shipper.  Accordingly  in  the  DELAWARE  2 
which  was  a  case  of  a  collision  between  two  vessels,  in 
which  the  wrongdoing  vessel  claimed  that  the  general  lan- 
guage of  the  third  section  of  the  act  exempted  it  from  lia- 
bility to  the  other  vessel,  the  court  held  that  such  was  not 
its  intention ;  that  it  was  not  intended  to  affect  the  rela- 
tions of  any  other  parties  than  shipper  and  carrier. 

Under  the  principle  of  this  decision,  the  owner  of  a  tug 
cannot  claim  exemption  under  the  third  section  of  the  act 
for  negligent  towage  by  which  cargo  on  a  barge  in  its  tow 
was  injured,  though  the  owner  of  the  tug  was  pro  hac  vice 
owner  of  the  barge  and  it  was  his  contract  of  carriage,  the 
act  applying  only  to  the  cargo  and  the  vessel  on  which  it 
was  laden.3 

As  to  the  policy  of  the  act,  the  Supreme  Court  in  its  opin- 
ion used  the  following  language :  "It  is  entirely  clear, 
however,  that  the  whole  object  of  the  act  is  to  modify  the 
relations  previously  existing  between  the  vessel  and  her 
cargo.  This  is  apparent  not  only  from  the  title  of  the  act, 
but  from  its  general  tenor  and  provisions,  which  are  evi- 
dently designed  to  fix  the  relations  between  the  cargo  and 
the  vessel,  and  to  prohibit  contracts  restricting  the  liabili- 
ty of  the  vessel  and  owners  in  certain  particulars  connected 
with  the  construction,  repair,  and  outfit  of  the  vessel,  and 
the  care  and  delivery  of  the  cargo.  The  act  was  an  out- 
growth of  attempts,  made  in  recent  years,  to  limit,  as  far 
as  possible,  the  liability  of  the  vessel  and  her  owners,  by 
inserting  in  bills  of  lading  stipulations  against  losses  aris- 
ing from  unseaworthiness,  bad  stowage,  and  negligence  in 
navigation,  and  other  forms  of  liability,  which  had  been 
held  by  the  courts  of  England,  if  not  of  this  country,  to  be 
valid  as  contracts,  and  to  be  respected  even  when  they  ex- 
empt the  ship   from  the  consequences  of  her  own  negli- 

§  92.     2  1C1  U.  S.  450,  16  Sup.  Ct.  51G,  40  L.  Ed.  771. 
b  Mfarrell  (D.  C.)  200  Fed.  826,  affirmed  195  Fed.  4S3,  113  C.  C.  A. 
393. 


§  92)       APPLICABLB  ONLY  BETWEEN  OWNER  AND  SHIPPER        185 

gence.  As  decisions  were  made  by  the  courts  from  time  to 
time,  holding  the  vessel  for  nonexcepted  liabilities,  new 
clauses  were  inserted  in  the  bills  of  lading  to  meet  these  de- 
cisions, until  the  common-law  responsibility  of  carriers  by 
sea  had  been  frittered  away  to  such  an  extent  that  several 
of  the  leading  commercial  associations,  both  in  this  country 
and  in  England,  had  taken  the  subject  in  hand,  and  sug- 
gested amendments  to  the  maritime  law  in  line  with  those 
embodied  in  the  Harter  act.  The  exigencies  which  led  to 
the  passage  of  the  act  are  graphically  set  forth  in  a  peti- 
tion addressed  by  the  Glasgow  Corn  Trade  Association  to 
the  Marquis  of  Salisbury,  and  embodied  in  a  report  of  the 
committee  on  interstate  and  foreign  commerce  of  the  house 
of  representatives." 

In  the  Irrawaddy,4  the  court  uses  the  following  language 
in  reference  to  the  purpose  of  the  act:  "Plainly,  the  main 
purposes  of  the  act  were  to  relieve  the  shipowner  from 
liability  for  latent  defects,  not  discoverable  by  the  utmost 
care  and  diligence,  and,  in  the  event  that  he  has  exercised 
due  diligence  to  make  his  vessel  seaworthy,  to  exempt  him 
and  the  ship  from  responsibility  for  damage  or  loss  result- 
ing from  faults  or  errors  in  navigation  or  in  the  manage- 
ment of  the  vessel.  But  can  we  go  further,  and  say  that  it 
was  the  intention  of  the  act  to  allow  the  owner  to  share  in 
the  benefits  of  a  general  average  contribution  to  meet  loss- 
es occasioned  by  faults  in  the  navigation  and  management 
of  the  ship?  Doubtless,  as  the  law  stood  before  the  pass- 
age of  the  act,  the  owner  could  not  contract  against  his  lia- 
bility and  that  of  his  vessel  for  loss  occasioned  by  negli- 
gence or  fault  in  the  officers  and  crew,  because  such  a 
contract  was  held  by  the  federal  courts  to  be  contrary  to 
public  policy,  and,  in  this  particular,  the  owners  of  Ameri- 
can vessels  were  at  a  disadvantage,  as  compared  with  the 
owners  of  foreign  vessels,  who  can  contract  with  shippers 

4  171  U.  S.  187,  18  Sup.  Ct.  831,  43  L.  Ed.  130. 


1S6 


THE    HARTER   ACT  (Ch.  8 


against  any  liability  for  negligence  or  fault  on  the  part  of 
the  officers  and  crew.  This  inequality,  of  course,  operated 
unfavorably  on  the  American  shipowner,  and  Congress 
thought  fit  to  remove  the  disadvantage,  not  by  declaring 
that  it  should  be  competent  for  the  owners  of  vessels  to  ex- 
empt themselves  from  liability  for  the  faults  of  the  master 
and  crew  by  stipulations  to  that  effect  contained  in  bills  of 
lading,  but  by  enacting  that,  if  the  owners  exercised  due 
diligence  in  making  their  ships  seaworthy  and  in  duly  man- 
ning and  equipping  them,  there  should  be  no  liability  for  the 
navigation  and  management  of  the  ships,  however  faulty. 
Although  the  foundation  of  the  rule  that  forbade  shipown- 
ers to  contract  for  exemption  from  liability  for  negligence 
in  their  agents  and  employes  was  in  the  decisions  of  the 
courts  that  such  contracts  were  against  public  policy,  it 
was  nevertheless  competent  for  Congress  to  make  a  change 
in  the  standard  of  duty,  and  it  is  plainly  the  duty  of  the 
courts  to  conform  in  their  decisions  to  the  policy  so  de- 
clared." 

This  case  also  illustrates  the  doctrine  that  the  act  was 
not  intended  to  affect  the  rights  of  the  vessel  to  third  par- 
ties. The  vessel  had  met  with  a  disaster  from  some  fault 
in  navigation  of  her  crew,  and  the  vessel  owner  contended 
that,  as  he  was  no  longer  liable  under  the  act  for  the  negli- 
gence of  his  crew  in  this  respect,  he  ought  to  be  entitled 
to  recover  against  the  cargo  owner  in  general  average  for 
such  loss.  The  Supreme  Court,  however,  held  that  it  did 
not  give  him  the  right  to  assert  a  claim  for  general  aver- 
age against  the  cargo  arising  out  of  the  negligence  of  his 
own  crew. 

But,  though  he  cannot  assert  such  claim  in  the  absence 
of  special  agreement,  the  act  shows  such  a  change  of  pol- 
icy that  he  is  allowed  by  special  agreement  to  stipulate  that 
he  shall  have  a  right  to  make  such  a  claim.5 

»  Jason.  225  U.  S.  32,  32  Sup.  Ct.  500,  50  L.  Ed.  909.  The  material 
sections  of  the  art  are  printed  in  a  note  to  this  case.     The  opinion 


§  93)  VESSELS  TO  WHICH  ACT  IS  APPLICABLE  1ST 

The  tendency  is  to  construe  the  statute  strictly.6  Hence 
it  does  not  apply  to  stipulations  in  a  charter  party  regulat- 
ing the  rights  of  owner  and  charterer  and  not  connected 
with  the  relation  between  shipper  and  carrier.7 

Nor  was  the  act  intended  to  apply  to  any  but  carriers 
of  goods.     Passenger  carriers  are  not  affected  by  it.8 

VESSELS  AND  VOYAGES  TO  WHICH  ACT  IS  AP- 
PLICABLE 

93.  The  test  as  to  vessels  which  come  under  this  act  is  not 
based  upon  their  nationality,  but  upon  their  voy- 
ages. 

In  the  first  two  sections,  the  voyages  covered  by  the  act 
are  those  between  ports  of  the  United  States  and  foreign 
countries,  and,  if  the  voyage  in  question  is  between  these 
ports,  the  act  applies  both  to  American  and  foreign  ves- 
sels.9 

by  Mr.  Justice  Pitney  gives  a  clear  analysis  and  explanation  of  the 
act. 

s  Benner  Line  v.  Pendleton,  217  Fed.  497,  505,  133  C.  C.  A.  349 : 
Compagnie  Maritime  Francaise  v.  Meyer,  248  Fed.  881,  8S5,  160  C. 
C.  A.  639. 

7  Lake  Steam  Shipping  Co.  v.  Bacon  (D.  O.)  137  Fed.  961 :  Id., 
145  Fed.  1022,  74  C.  C.  A.  476;  Golcar  S.  S.  Co.  v.  Tweedie  Trading 
Co.  (D.  C.)   146  Fed.  563. 

s  Moses  v.  Hamburg-American  Packet  Co.  (D.  C.)  88  Fed.  329 ;  Id., 
92  Fed.  1021,  34  C.  C.  A.  687;  New  England  (D.  C.)  110  Fed.  415, 
418 ;  California  Nav.  &  Imp.  Co.,  In  re  (D.  C.)  110  Fed.  .67S.  These 
cases  exclude  from  the  scope  of  the  statute  personal  injuries  to 
passengers  and  injuries  to  baggage  carried  as  such.  In  Kensington, 
183  U.  S.  263,  22  Sup.  Ct.  102,  46  L.  Ed.  190,  the  question  was  in- 
cidentally involved.  The  court,  while  holding  that  the  statute  did 
not  cover  the  specific  case,  decided  that  the  statute  would  apply  if 
the  passenger  was  compelled  to  send  his  baggage  as  freight  by  rea- 
son of  a  regulation  of  the  carrier  as  to  valuation. 

§  93.  s  Chattahoochee,  173  U.  S.  540,  19  Sup.  Ct.  491,  43  L.  Ed. 
801;  Knott  v.  Botany  Worsted  Mills,  179  U.  S.  69,  21  Sup.  Ct.  30, 
45  L.  Ed.  90;    Tampico   (D.  C.)  151  Fed.  689. 


188  THE    HARTER   ACT  (Ch.  8 

These  sections,  therefore,  in  the  cases  to  which  they  ap- 
plied, put  American  and  foreign  vessels  on  an  equality ; 
but  it  was  necessary  to  go  further  than  this.  Had  the  law- 
stopped  at  that  point,  American  vessels  in  foreign  ports 
would  have  had  an  advantage  over  American  vessels  in  the 
coasting  trade,  as  the  latter  could  not  have  stipulated 
against  liability.  Hence  the  third  section,  which  exempts 
vessels  from  negligence  in  navigation  and  from  liability,  ir- 
respective of  negligence,  for  perils  of  the  sea  and  other  par- 
ticulars which  common  carriers  could  stipulate  against,  ap- 
plies not  only  to  voyages  between  American  and  foreign 
ports,  but  to  all  voyages  from  American  ports,  even  though 
to  other  American  ports.10 


RELATIVE    MEASURE    OF    OBLIGATION    AS    TO 

HANDLING  THE  CARGO  AND  HANDLING 

THE  SHIP 

94.  The  carrier  is  liable  for  negligence  in  connection  with 
the  handling  of  the  cargo,  whether  during  loading, 
during  the  voyage,  or  during  unloading,  and  can- 
not protect  himself  against  such  negligence  by 
stipulation. 
On  the  other  hand,  the  statute  proprio  vigore  exempts 
him  from  the  consequences  of  negligent  naviga- 
tion (against  which  he  could  not  have  contracted 
under  American  law),  and  from  other  grounds  of 
liability  (against  which  he  could  have  contracted 
under  American  law),  if  he  exercises  due  diligence 
to  furnish  a  seaworthy  vessel. 
Stipulations  not  falling  under  the  prohibitions  of  the  act 
which  were  valid  before  are  stifl  permissible. 

io  E.  A.  Shores.  Jr.  (D.  C.)  70  Fed.  342;    In  re  Piper  Aden  Good- 
all  Co.  (D.  C.)  86  Fed.  670;    Nettie  Quill  (D.  C.)  124  Fed.  6G7. 


§  94)    IMPROPER   LOADING  AND   NEGLIGENT   NAVIGATION        189 

The  main  questions  under  the  act  have  arisen  in  connec- 
tion with  the  first  three  sections.  Its  general  scheme  is  to 
make  the  vessel  liable  for  faults  in  connection  with  the 
ordinary  shipment  and  stowage  of  the  cargo,  but  to  ex- 
empt her  from  liability  for  negligence  in  navigation  after 
the  voyage  commences. 

The  distinction  between  acts  connected  with  handling  the 
cargo  and  those  connected  with  handling  the  ship  is  a  close 
one,  and  has  given  rise  to  many  decisions. 

In  Calderon  v.  Steamship  Co.,11  a  vessel  on  a  voyage 
from  New  York  to  certain  West  India  ports  put  some  goods 
designed  for  one  port  in  a  compartment  beneath  goods  de- 
signed for  a  second  port.  Hence,  when  she  reached  the 
first  port,  the  goods  could  not  be  found,  and  were  carried 
past  their  destination.  At  the  second  port  they  were  found, 
but  the  vessel  came  back  on  her  trip  to  New  York,  and  the 
goods  were  lost.  The  court  held  that  this  was  not  a  fault 
of  navigation,  but  a  fault  in  proper  delivery,  and  that,  there- 
fore, the  vessel  was  liable,  and  the  bill  of  lading  could  not 
stipulate  against  such  an  act. 

In  the  Frey,12  some  glycerine  was  so  loosely  stowed  that 
it  rolled  around  in  rough  weather,  and  injured  the  other 
cargo.     The  vessel  was  held  liable. 

In  the  Kate,13  the  crew,  while  loading  in  port,  left  out 
several  stanchions,  intended  to  support  part  of  one  of  the 
decks,  and  piled  up  on  the  remaining  stanchion  an  unusual 
load,  and  the  vessel  was  in  this  condition  when  she  sailed. 
The  court  held  that  this  was  not  a  fault  in  navigation,  and 
that  the  vessel  was  liable. 

In  the  Colima,14  the  vessel  was  so  loaded  that  she  was 

§  94.  ii  170  U.  S.  272,  18  Sup.  Ct.  588,  42  L.  Ed.  1033.  See,  also, 
Gulden  v.  Hijos,  252  Fed.  577,  164  C.  C.  A.  493. 

12  (D.  C.)  92  Fed.  667.  See,  also,  Dunbritton,  73  Fed.  352,  19  C.  C. 
A.  449. 

is  (D.  C.)  91  Fed.  679. 

i*  (D.  C.)  82  Fed.  665.  Cases  of  this  character  are  numerous. 
Germanic,  196  U.  S.  589,  25  Sup.  Ct.  317,  49  L.  Ed.  610;   Oneida.  128 


190  THE   HARTER  ACT  (Ch.  8 

crank  in  bad,  though  not  extraordinary,  weather.  She  was 
held  liable. 

In  the  Whitlieburn,15  it  was  held  that  properly  ballasting 
the  ship  was  connected  with  the  loading,  and  not  the  navi- 
gation, and  that  the  vessel  was  liable  for  any  injury  caused 
by  failing  to  attend  to  this. 

In  the  Niagara,16  a  vessel  which  went  to  sea  with  a  de- 
fective mechanical  horn  was  held  not  properly  equipped 
(or  seaworthy  in  the  technical  sense),  and  therefore  that 
she  was  liable  to  the  cargo  for  any  damage  caused  thereby. 

A  competent  master  and  sufficient  crew  are  parts  of  the 
requirement  of  seaworthiness,  but  a  negligent  act  of  the 
master  is  not  of  itself  proof  of  incompetency.17 

Some  narrow  distinctions  have  been  drawn  in  reference 
to  the  refrigerating  apparatus  of  modern  vessels.  If  the 
apparatus  is  defective,  the  carrier  is  not  protected  by  the 
Statute.18 

If,  on  the  other  hand,  the  apparatus  is  sufficient,  but  is 
carelessly  used,  that  is  a  fault  in  navigation,  and  the  car- 
rier is  protected.19 

The  statutory  exemption  from  faults  of  navigation  does 
not  come  into  effect  until  the  voyage  has  actually  begun.2'1 

As  the  exemption  from  liability  for  faults  of  navigation 

Fed.  6S7,  63  C.  C.  A.  2.30;  Steamship  Wellesley  Co.  v..  Hooper,  185 
Fed.  733,  108  C.  C.  A.  71 ;  Ingram  &  Royle,  Ltd.,  v.  Services  Man- 
times,  [1013]  1  K.  B.  53S. 

is  (D.  C.)  80  Fed.  526.  So  as  to  dunnage.  Earnwood  (D.  C.)  83 
Fed.  315. 

io  2S  C.  C.  A.  528,  84  Fed.  002. 

it  Cygnet,  126  Fed.  742,  Gl  C.  C.  A.  348;  Hanson  v.  Haywood,  152 
Fed.  401,  81  C.  C.  A.  527. 

is  Southwark,  101  U.  S.  1,  24  Sup.  Ct.  1,  48  L.  Ed.  65;  Nelson  v. 
Nelson  Line,  [1007]  1  K.  B.  760;    [1008]  A.  C.  16. 

isRowson  v.  Transport  Co.  [1003]  1  K.  B.  114;  2  K.  B.  666. 

20  steamship  Wellesley  Co.  v.  Hooper,  L85  Fed.  733,  10S  C.  C.  A. 
71  ;   Gilchrist  Transp.  Co.  v.  Boston  Ins.  Co.,  223  Fed.  716,  130  C.  C. 

A.  2i';. 


§  94)       IMPROPER  LOADING  AND  NEGLIGENT  NAVIGATION  191 

is  given  on  condition  that  the  carrier  will  exercise  due  dili- 
gence to  make  his  vessel  seaworthy,  the  burden  to  prove 
compliance  with  this  condition  is  on  the  carrier.21 

Some  of  the  nicest  questions  in  connection  with  the  act 
have  arisen  in  reference  to  the  proper  management  of  her 
portholes.  The  question  as  to  responsibility  for  leaving  a 
porthole  open  or  insecurely  fastened  at  sailing  depends 
largely  upon  its  location,  and  upon  the  question  whether 
harm  could  reasonably  be  expeeted  to  come  from  leaving 
it  open. 

In  the  Silvia,22  a  porthole  was  knowingly  left  open  by 
the  crew  at  the  time  of  the  vessel's  sailing,  and  care  was 
taken  not  to  block  it  by  cargo,  so  that  in  case  of  necessity, 
when  the  vessel  went  to  sea,  it  could  have  been  easily 
closed.  The  porthole  itself  was  without  defect.  At  sea  the 
crew  forgot  to  close  it,  and  some  of  the  goods  were  injured. 
The  court  held  that  this  was  a  fault  of  navigation,  and  did 
not  render  the  vessel  unseaworthy. 

On  the  other  hand,  in  the  Manitoba,23  a  porthole  was  un- 
intentionally left  insecure  at  the  time  of  sailing.  Judge 
Brown  held  that  this  was  a  fault  connected  with  the  ordi- 
nary loading,  and  was  not  an  act  of  navigation,  and  that 
the  ship  was  liable.  It  is  commended  as  an  interesting  dis- 
cussion of  the  difference  between  the  two  cases. 

In  the  English  case  of  Dobell  v.  Steamship  Rossmoxe 
Co.,24  the  porthole  was  not  only  left  open,  but  cargo  was 
packed  against  it,  so  that  it  could  not  have  been  closed  at 
sea.  The  court  held  that  under  these  circumstances  it  was 
a  fault  in  loading,  and  not  in  navigation,  and  that  the  vessel 
was  liable. 

21  Wildcroft,  201  U.  S.  378,  26  Sup.  Ct.  467,  50  L.  Ed.  794;  R.  P. 
Fitzgerald,  212  Fed.  G7S.  129  C.  C.  A.  214. 

22  171  u.  S.  462,  19  Sup.  Ct.  7,  43  L.  Ed.  241.  See,  also,  Tenedos 
(D.  C.)  137  Fed.  443 ;    151  Fed.  1022,  S2  C.  C.  A.  671. 

23  (D.  C.)  104  Fed.  145.  See.  also,  International  Navigation  Co.  v. 
Farr  &  Bailey  Mfg.  Co.,  181  U.  S.  218,  21  Sup.  Ct.  591,  45  L.  Ed.  830. 

2  4  [1895]  2  Q.  B.  408. 


192  THE   HARTER   ACT  (Ch.  8 

The  vessel  which  is  so  stowed  that  she  is  down  by  the 
head,  causing  the  cargo  to  run  forward,  is  liable  for  the 
consequences.25 

On  the  other  hand,  where  water  ballast  in  being  pumped 
out  injured  the  cargo,  owing  to  the  fact  that  the  crew  in 
pumping  negligently  left  a  valve  open,  the  machinery  it- 
self being  in  perfect  order,  this  was  held  a  fault  in  naviga- 
tion, and  the  vessel  was  not  liable.20 

And  lack  of  attention  to  the  vessel's  pumps  while  on  a 
voyage,  by  which  cargo  was  injured,  the  pumps  themselves 
being  in  good  order,  is  a  fault  in  navigation,  for  which  the 
vessel  is  not  liable  under  the  act.27  Breaking  adrift  and 
causing  damage  to  cargo,  because  the  pilot  anchored  the 
vessel  in  a  bad  place,  was  a  fault  of  navigation,  for  which 
the  ship  was  not  liable.28 

So  a  vessel  which  was  injured  on  a  voyage,  and  taken  to 
an  intermediate  port  for  repairs,  was  not  liable  for  subse- 
quent damage  from  the  failure  to  make  the  repairs  suffi- 
ciently extensive,  owing  to  a  lack  of  judgment  of  the  mas- 
ter.29 ' 

25  Botany  Worsted  Mills  v.  Knott  (D.  C.)  76  Fed.  5S2 ;  Id.,  82 
Fed.  471,  27  C.  C.  A.  326 ;  Knott  v.  Botany  Worsted  Mills,  179  TJ.  S. 
09,  21  Sup.  Ct.  30,  45  L.  Ed.  90.  But  tipping  the  ship  by  the  master, 
not  in  connection  with  the  discharge  of  the  cargo,  but  in  order  to 
examine  the  propeller  is  a  fault  in  navigation.  Indrani,  177  Fed. 
914,  101  C.  C.  A.  194. 

ze  Mexican  Prince  (I).  C.)  82  Fed.  484;  Id.,  91  Fed.  1003,  34  C. 
C.  A.  168.  See,  also,  Wildcroft,  201  U.  S.  37S,  26  Sup.  Ct.  467,  50 
L.  Ed.  794;  American  Sugar  Refining  Co.  v.  Rickinson,  124  Fed.  188, 
59  C.  C.  A.  604. 

27  British  King  (D.  C.)  89  Fed.  872;  Id.,  92  Fed.  1018,  35  C.  O.  A. 
159. 

2  8  Etona,  71  Fed.  895,  18  C.  C.  A.  380. 

29  The  Guadeloupe  (D.  C.)  92  Fed.  670;  Corsar  v.  Spreckels.  141 
Fed.  260,  72  C.  C.  A.  378 ;  U.  S.  v.  New  York  &  O.  S.  S.  Co.,  216  Fed. 
01,  132  C.  C.  A.  305. 


§  95)      REDUCTION  OF  LIABILITY  FOR  UNSEAWORTHINESS         193 

Validity  of  Stipulations  Not  Mentioned  in  the  Act 

Stipulations  not  covered  by  the  terms  of  the  statute, 
which  were  valid  under  American  law  before  the  act,  are 
unaffected  by  it. 

A  stipulation  against  thieves  is  valid.30 

So  as  to  a  stipulation  against  strikes.31 

So  a  stipulation  as  to  a  substituted  delivery  at  the  quay 
or  into  hired  lighters.32 

So  a  stipulation  limiting  the  value,  provided  the  shipper 
is  left  free  to  declare  the  true  value.33 


NECESSITY  OF  STIPULATION  TO  REDUCE  LIA- 
BILITY FOR  UNSEAWORTHINESS 

95.  The  act  permits  the  shipowner  to  reduce  his  warranty 
of  seaworthiness  to  the  measure  of  reasonable  dil- 
igence by  proper  stipulations,  but  does  not  have 
this  effect  proprio  vigore. 

Probably  the  most  interesting  case  that  has  been  decided 
so  far  upon  the  act  is  the  CARIB  PRINCE.34  There,  a 
defective  rivet  which  had  existed  from  the  very  construc- 
tion of  the  ship,  and  was  not  discoverable  by  the  utmost 
care,  caused  by  leakage  a  damage  to  the  cargo.  Under  the 
decisions  relating  to  seaworthiness  independent  of  the  act, 
this  was  a  latent  defect,  and  the  owner  was  solely  responsi- 
ble under  his  implied  warranty  of  seaworthiness.  The 
vessel  owner  asserted  exemption,  first,  on  the  ground  that 

30  Cuiiard  S.  S.  Co.  v.  Kelley,  115  Fed.  678,  53  C.  C.  A.  310. 

si  Toronto  (D.  C.)  168  Fed.  386. 

32  Portuguese  Prince  (D.  C.)  209  Fed.  995. 

3  3Hohl  v.  Norddeutscher  Lloyd,  175  Fed.  544,  99  C.  C.  A.  1G6 ; 
Kuhnhold  v.  Compagnie  Generate  Transatlantique  (D.  C.)  251  Fed. 
3S7. 

§  95.     3  4  170  U.  S.  655,  18  Sup.  Ct.  753,  42  L.  Ed.  1181.     See,  also, 
Indrapura,  190  Fed.  711,  112  C.  C.  A.  351. 
Hughes, Adm. (2d  Ed.)— 13 


194  THE    BARTER   ACT  (Ch.  8 

his  bill  of  lading  contained  a  clause  against  such  unsea- 
worthiness, by  which  he  was  released  from  liability;  and, 
second,  he  contended  that  the  language  of  the  Harter  act 
itself,  even  if  the  bill  of  lading  did  not  mean  what  he  said, 
exempted  him  from  every  defect  in  the  vessel  not  discover- 
able by  due  diligence.  The  Supreme  Court,  however,  held, 
as  to  the  first  point,  that  his  bill  of  lading,  properly  con- 
strued, was  not  intended  to  cover  defects  in  the  vessel  ex- 
isting at  the  time  of  sailing,  but  only  those  subsequently 
arising.  In  reference  to  his  second  defense,  it  held  that  the 
act  did  not,  by  force  of  its  own  language,  reduce  the  liabil- 
ity for  unseaworthiness  to  the  measure  of  due  diligence, 
when  no  contract  was  made,  but  merely  gave  the  vessel 
owner  the  right,  by  contract  properly  worded,  to  so  reduce 
his  liability.  Hence  it  held  the  vessel  liable  under  his  im- 
plied warranty  of  seaworthiness,  independent  of  the  stat- 
ute, as  he  had  not  by  contract  protected  himself  against  it. 

Recapitulation 

The  act  is  a  compromise  between  the  interests  of  shipper 
and  carrier,  and  was  intended,  in  the  interests  of  American 
shipping,  to  put  the  American  carrier  on  an  equality  with 
the  foreign  carrier. 

The  first  section  forbade  any  stipulation  against  negli- 
gence in  connection  generally  with  the  handling  of  the 
cargo. 

The  second  section  allowed  the  carrier  to  reduce  his  for- 
mer absolute  warranty  of  seaworthiness  to  the  measure  of 
due  diligence,  provided  he  so  stipulated,  but  did  not  do  this 
proprio  vigore   for  him. 

It  allowed  a  similar  stipulation  as  to  the  handling  of  the 
cargo. 

The  third  section  of  its  own  force  exempted  the  carrier 
from  liability  for  faults  in  navigation,  sea  perils,  acts  of 
God  or  public  enemies,  inherent  vice  in  thing  carried,  insuf- 
ficiency of  package,  legal  process,  and  deviation,  provided 
the  carrier  showed  due  diligence  as  to  seaworthiness  in  case 
he  wished  t<>  set  up  any  <>f  these  defensi 


§§96-97)      ADMIRALTY  JURISDICTION  IN  MATTERS  OF  TORT      195 

CHAPTER  IX 
OF  ADMIRALTY  JURISDICTION  IN  MATTERS  OF  TORT 

96-97.    The  Waters  Included,  and  Wharves,  Piers,  and  Bridges. 

98.  Torts,  to  be  Marine,  must  be  Consummate  on  Water. 

99.  Torts  may  be  Marine  though  Primal  Cause  on  Land. 

100.  Detached  Structures  in  Navigable  Waters. 

101.  Torts  Arising  from  Relation  of  Crew  to  Vessel  or  Owner. 

102.  Personal    Torts    Arising    from    Relation    of    Passengers    to 

Vessel. 

103.  Obligations  to  Persons  Rightfully  on  Vessel,  but  Bearing  no 

Relation  to  It. 

104.  Liability  as  between  Vessel  and  Independent  Contractor. 

105.  Doctrine  of  Imputed  Negligence. 

106.  Miscellaneous  Marine  Torts. 

107.  Doctrine  of  Contributory  Negligence. 

THE    WATERS    INCLUDED,    AND    WHARVES, 
PIERS,  AND  BRIDGES 

96.  The  test  of  jurisdiction  in  matters  of  tort  is  the  lo- 

cality. 

97.  This  includes  navigable  waters,  natural  and  artificial,  in 

their  average  state,  but  does  not  include  wharves, 
piers,  or  bridges  attached  to  the  shore. 

We  have  already  seen  that  the  test  of  jurisdiction  in  mat- 
ters of  tort  is  the  locality,  and  therefore  we  must  first  con- 
sider what  is  meant  by  this  test,  and  what  waters  it  in- 
cludes ;  and  we  must  then  take  up  the  various  torts  cog- 
nizable in  admiralty.  They  may  be  subdivided  into  torts  to 
the  person  and  torts  to  property ;  and  torts  to  the  person 
may  be  further  subdivided,  for  convenience  of  discussion, 
into  torts  not  resulting  in  death  and  those  resulting  in  death. 

The  admiralty  jurisdiction  in  matters  of  tort  exists  over 
all  navigable  waters,  as   explained   in   a  previous   connec- 


196         ADMIRALTY  JURISDICTION  IN  MATTERS  OF  TORT        (Ch.  9 

tion.1  This  includes  canals.2  But  it  includes  only  naviga- 
ble waters  in  their  usual  state.  For  instance,  a  stream  that 
is  navigable  at  ordinary  tides  is  none  the  less  within  the  ju- 
risdiction because  it  happens  to  be  bare  at  an  unusually  low 
tide ;  and,  conversely,  when  a  navigable  river  is  widened  by 
freshets  far  beyond  its  usual  banks,  and  overspreads  the  ad- 
joining country  on  either  side,  it  does  not  carry  admiralty 
jurisdiction  with  it.  Hence,  in  the  Arkansas,3  a  steamer 
which,  during  a  flood,  was  far  out  of  the  regular  channel, 
and  collided  with  a  house,  which  was  usually  inland,  was 
held  to  have  committed  no  marine  tort. 

There  is  a  conflict  of  authority  on  the  question  whether 
an  injury  received  in  a  dry  dock  while  the  water  is  pumped 
out  comes  under  the  cognizance  of  the  admiralty.  In  the 
Warfield  4  Judge  Thomas  held  that  a  workman  who  fell 
through  the  open  hatch  of  a  ship  while  in  a  dry  dock  had 
no  remedy  in  admiralty. 

On  the  other  hand,  in  the  Anglo-Patagonian  it  was  held 
that  there  was  such  remedy  in  the  case  of  injury  to  work- 
men who  were  injured  by  the  falling  of  the  anchor  from  a 
ship  while  in  dry  dock,  though  they  were  not  even  aboard 
the  ship,  but  were  on  a  staging  erected  for  the  purpose  of 
enabling  them  to  work  outside  the  ship.  They  were  em- 
ployed by  the  dry  dock  company  which  had  a  contract  for 
repairing  the  ship.5 

§§  90-97.     i  Ante,  P.  10. 

2  Ex  parte  Boyer,  109  U.  S.  629,  3  Sup.  Ct.  434,  27  L.  Ed.  1056. 

s  (D.  C.)  17  Fe<L  3S3.  The  decision  could  have  been  rested  on  the 
fact  that  the  injury  complained  of  was  by  the  ship  to  a  permanent 
structure,  and  not  by  the  structure  to  the  ship ;  but  the  judge  al- 
so discusses  the  question  stated  in  tbe  text. 

*  (D.  C.)  120  Fed.  847. 

-  235  Fed.  92,  148  C.  C.  A.  586.  In  the  judgment  of  the  author, 
the  doctrine  that  such  an  injury  does  not  come  under  the  jurisdiction 
of  the  admiralty  rests  upon  the  better  principle.  No  refinement  of 
distinction  can  make  a  dry  dock  without  any  water  in  it  navigable. 
No  decision  of  any  court  can  change -a  stubborn   fact     At  most,  a 


§§  96-97)       WATERS   INCLUDED,   WHARVES,  PIERS,  ETC.  197 

The  line  is  narrow  between  the  navigable  waters  and 
structures  extended  from  the  land  over  or  under  them. 
Anything-  that  is  attached  to  the  shore,  although  the  water 
may  be  beneath  it,  is  considered  as  a  projection  of  the  shore, 
and  torts  happening  upon  such  structures  are  not  within 
the  jurisdiction  of  the  admiralty. 

In  the  Professor  Morse,6  a  marine  railway  attached  to  the 
shore  projected  out  into  navigable  water;  that  portion 
which  was  intended  to  raise  ships  being  under  water.  A 
passing  schooner  injured  this  portion.     The  owner  of  the 

dry  dock  would  be  analogous  to  the  space  between  high  and  low 
water  mark.  Under  the  English  classics  tbe  common  law  and  the 
admiralty  had  a  divisum  imperium  as  to  such  space ;  the  common 
law  when  the  tide  was  out,  and  the  admiralty  when  the  tide  was  In. 
Sir  Henry  Constable's  Case,  5  Co.  Rep.  107.  77  Eng.  Reprint,  218; 
Finch,  Law  Discourses,  bk.  2,  c.  1 ;    1  Black.  Com.  110. 

The  cases  cited  by  the  court  are  distinguishable.  The  first  is 
Perry  v.  Haines,  191  U.  S.  17,  24  Sup.  Ct.  8,  48  L.  Ed.  73.  It  was 
a  contract,  not  a  tort,  case,  and  it  is  well  known  that  the  test  as 
to  jurisdiction  in  contract  cases  is  their  nature,  not  their  locality. 
The  next  is  Simons  v.  Jefferson,  215  U.  S.  130,  30  Sup.  Ct.  54,  54 
L.  Ed.  125,  17  Ann.  Cas.  907.  It  was  a  claim  for  a  salvage  service 
rendered  to  a  ship  in  dry  dock,  which  certainly  had  no  character- 
istics of  a  tort.  In  the  very  last  paragraph  of  the  opinion  the  court 
carefully  limits  it  to  salvage  cases.  The  next  is  Atlantic  Transport 
Co.  of  West  Virginia  v.  Imbrovek,  234  U.  S.  52,  34  Sup.  Ct.  733,  58  L. 
Ed.  120S,  51  L.  R.  A.  (N.  S.)  1157.  It  was  a.  claim  for  an  injury 
received  on  board  a  ship  which  was  afloat  on  navigable  waters,  and 
the  court  takes  care  to  state  this  fact  in  its  opinion.  The  last  is 
the  Raithmoor,  241  U.  S.  166,  36  Sup.  Ct.  514,  60  L.  Ed.  937.  It  was 
a  libel  for  an  injury  inflicted  on  a  detached  structure  surrounded  by 
navigable  water.  The  court  emphasizes  the  fact  that  it  was  at- 
tached to  the  land  only  at  the  bottom,  and  not  in  any  way  to  the 
shore. 

In  the  Mecca,  [1S95]  P.  95,  107,  Lindley,  J.,  says:  "An  artificial 
basin  or  dock  excavated  out  of  land,  but  into  which  water  from  the 
high  seas  could  be  made  to  flow,  would  not,  I  apprehend,  be  in  any 
sense  part  of  the  high  seas,  whether  such  basin  or  dock  were  in 
this  country  or  any  other." 

e  (D.  C.)  23  Fed.  803. 


198        ADMIRALTY  JURISDICTION  IN  MATTERS  OF  TORT        (Ch.  9 

railway  libeled  the  schooner,  but  the  court  dismissed  the 
libel  for  want  of  jurisdiction. 

The  preponderance  of  authority  in  the  trial  courts  is  in 
favor  of  the  jurisdiction  in  case  of  injury  to  submarine  ca- 
bles, though  they  are  attached  to  the  shore  at  each  end.7 

But  it  is  hard  to  draw  any  distinction  between  such  in- 
juries and  that  complained  of  in  the  Poughkeepsie.8  Here 
the  injury  was  to  certain  structures  in  use  in  boring  into 
the  bed  of  the  river  for  the  purpose  of  laying  water  pipes 
under  the  river,  which  were  to  supply  New  York  City  with 
water.     The  court  denied  the  jurisdiction. 

Injuries  to  a  wharf,  or  bridge,  or  pier  by  a  vessel  run- 
ning into  it  cannot  be  recovered  in  admiralty,  as  they  are 
considered  to  have  happened  on  land:9 

In  the  Haxby,10  a  vessel  collided  with  a  pier,  and  knocked 
into  the  water  property  of  some  value,  which  fell  on  account 
of  the  injury  to  the  wharf.  It  was  held  that,  though  this 
property,  after  the  injury  to  the  wharf,  fell  into  what  other- 
wise would  constitute  navigable  water,  that  did  not  bring 
the  case  into  the  jurisdiction  of  the  admiralty  courts. 

If  a  ship  is  injured  by  the  negligence  of  a  bridge  owner, 
as  by  failure  to  open  a  draw  in  time,  the  vessel  owner  may 
sue  the  bridge  owner  in  personam  in  the  admiralty,  since 
the  vessel  is  a  floating  structure,  and  the  injury,  though  it 
commenced  on  the  land,  was  consummate  on  navigable  wa- 
ters.11 

i  Postal  Telegraph  Cable  Co.  v.  P.  Sanford  Ross,  Inc.  (D.  C.)  221 
Fed.  105 ;  U.  S.  v.  North  German  Lloyd  (D.  C.)  239  Fed.  587 ;  Toledo 
(D.  C.)  242  Fed.  168. 

a  (D.  C.)  162  Fed.  494 ;  Phoenix  Const.  Co.  v.  Poughkeepsie,  212  U. 
S.  558,  29  Sup.  Ct.  687,  53  L.  Ed.  651. 

o  Neil  Cochran,  Fed.  Cas.  No.  7,996 ;  Cleveland,  T.  &  V.  It.  Co.  v. 
Cleveland  S.  S.  Co.,  20S  U.  S.  316,  28  Sup.  Ct.  414,  52  L.  Ed.  508,  13 
Ann.  Caa.  1215;  Martin  v.  West,  222  U.  S.  L91,  32  Sup.  Ct.  42,  56  L. 
Ed.  159,36  L.  B.  A.  (N.  S.)  592. 

io  (D.  C.)  91  Fed.  L016;   Id.,  95  Fed.  L70. 

ii  Zeta,  [18931  A.  C.  468;    Panama  R.  Co.  v.  Napier  shipping  Co., 


§  98)     TORTS,  MUST  BE  CONSUMMATE  ON  WATER      199 

For  the  same  reason  injuries  inflicted  upon  a  ship  by  de- 
fects in  the  wharf  or  dock  are  within  the  maritime  jurisdic- 
tion, and  the  wharfinger  may  be  sued  in  personam  to  re- 
cover damages  occasioned  thereby.1,2 

This  right  of  the  vessel  owner,  however,  is  limited  to  a 
suit  in  personam  against  the  wharfinger  or  bridge  owner. 
Such  a  structure  is  not  a  maritime  instrument,  cannot  be 
the  subject  of  a  maritime  lien,  and  cannot  be  liable  in  rem.13 

In  England  admiralty  can  take  jurisdiction  of  suits  for 
injuries  to  wharves  or  piers.  This  is  due  to  the  language 
of  Act  24  Vict.  c.  10,  §  7,  which  gives  jurisdiction  "over  any 
claim  for  damage  done  by  any  ship."  14 


TORTS,  TO  BE  MARINE,  MUST  BE  CONSUMMATE 
ON  WATER 

98.  In  order  for  a  tort  to  be  within  the  jurisdiction  of  the 
admiralty,  it  must  be  consummate  on  navigable 
water.  The  fact  that  it  commences  upon  the  water 
does  not  give  jurisdiction  if  the  injury  itself  was 
inflicted  on  the  shore. 

In  the  leading  case  of  the  PLYMOUTH,15  a  ship  lying 
at  a  wharf  caught  on  fire,  and  the  fire  communicated  to 
buildings  on  the  shore.     The  owner  of  the  buildings  con- 

166  TJ.  S.  280,  17  Sup.  Ct.  572,  41  L.  Ed.  1004;  O'Keefe  v.  Staples 
Coal  Co.  (D.  C.)  201  Fed.  131 ;  Dorrington  v.  Detroit,  223  Fed.  232, 
138  C.  C.  A.  474. 

12  Smith  v.  Burnett,  173  U.  S.  430,  19  Sup.  Ct.  442,  43  L.  Ed.  756. 

is  in  RE  ROCK  ISLAND  BRIDGE,  6  Wall.  213,  IS  L.  Ed.  753. 

I*  Uhla,  L.  R.  2  A.  &  E.  29,  note  3;  Boak  v.  The  Baden,  8  Can. 
Ex.  343. 

§  98.  153  Wall.  20,  18  L.  Ed.  125.  The  question  whether  the 
right  of  action  for  a  death  caused  by  an  injury  received  on  navigable 
waters,  but  where  the  injured  party  does  not  die  till  carried  ashore, 
should  logically  be  discussed  in  this  connection,  but  for  convenience 
will  be  discussed  in  the  next  chapter,  post,  p.  234. 


200        ADMIRALTY  JURISDICTION  IN  MATTERS  OF  TORT        (Ch.  9 

tended  that  the  vessel  owner,  or  his  agent,  was  negligent  in 
the  origin  of  the  fire,  and  sued  the  owners  of  the  ship  in  ad- 
miralty for  the  damages  caused.  The  court  held  that,  as 
the  right  of  action  was  not  complete  until  the  buildings  were 
injured,  and  as  the  buildings  were  a  part  of  the  shore,  and 
therefore  the  injury  was  inflicted  upon  the  shore,  there  was 
no  jurisdiction. 

This  principle  was  afterwards  applied  in  EX  PARTE 
PHENIX  INS.  CO.16 

In  Johnson  v.  Chicago  &  P.  Elevator  Co.,17  the  jib  boom 
of  a  schooner,  which  was  being  docked  at  a  wharf,  and 
which  projected  over  the  wharf,  struck  a  warehouse  on  the 
wharf,  and  did  great  damage.  A  libel  to  recover  these  dam- 
ages was  dismissed  for" want  of  jurisdiction. 

In  the  Mary  Stewart,18  a  ship  was  loading  cotton,  which 
was  being  carried  aboard  by  slings  while  the  ship  was  lying 
alongside  the  wharf.  One  of  the  bales  fell  while  being 
hoisted  aboard  and  before  it  crossed  the  ship's  rail,  and 
injured  a  workman  standing  on  the  wharf.  He  libeled  the 
ship  for  damages,  but  the  court  held  that  admiralty  had  no 
jurisdiction. 

In  the  H.  S.  Pickands,19  a  workman  on  a  ladder  which 
rested  on  the  wharf,  and  extended  up  the  ship's  side,  was 
injured  by  its  slipping.    The  court  denied  its  jurisdiction. 

The  distinction  is  close  in  case  of  persons  attempting  to 
board  or  leave  vessels  at  wharves.     In  the  Albion  20  juris- 
ts 118  U.  S.  610,  7  Sup.  Ct.  25,  30  L.  Ed.  274. 

it  H9  Tj.  S.  38S,  7  Sup.  Ct.  254,  30  L.  Ed.  477.  The  damage  con- 
sisted in  knocking  a  hole  in  the  warehouse,  by  which  a  quantity  of 
corn  stored  therein  ran  into  the  water.  The  suit  was  for  the  corn 
so  lost,  not  for  the  damage  to  the  building.  Yet  the  cOurt  denied 
the  jurisdiction,  though  the  cause  of  action,  at  least  as  to  the  loss 
of  the  corn,  was  consummate  on  navigable  waters.  The  part  of  the 
opinion  devoted  to  the  question  is  short,  and  contains  no  discus- 
sion. 

is  (D.  C.)  10  Fed.  137.     See,  also,  Bee  (D.  C.)  216  Fed.  700. 

i«  (D.  C.)  42  Fed.  239. 

•-■  mD.  C.)  123  Fed.  1S9. 


§  99)  MARINE  TORTS  ON  LAND  201 

diction  was  denied  in  case  of  a  man  who  fell  from  a  wharf 
in  attempting  to  board  a  vessel,  never  having  reached  the 
vessel.  And  in  Gordon  v.  Drake  21  jurisdiction  was  decided 
not  to  be  in  the  admiralty  where  a  man  tried  to  jump  from 
a  vessel  to  a  wharf.  He  alighted  on  the  wharf,  but  was  in- 
jured in  doing  so. 

In  Bain  v.  Sandusky  Transp.  Co.,22  seamen  who  had  left 
their  ship  were  arrested  ashore  as  deserters.  They  sued  in 
admiralty  for  a  false  arrest,  but  the  court  held  that  there 
was  no  jurisdiction. 


TORTS   MAY  BE   MARINE,  THOUGH  PRIMAL 
CAUSE  ON  LAND 

99.  The  converse  of  the  above  proposition  is  also  true — that, 
where  the  injury  is  consummate  on  the  ship,  ad- 
miralty has  jurisdiction,  though  its  primal  cause 
was  on  the  land. 

In  Hermann  v.  Port  Blakely  Mill  Co.,23  a  laborer  work- 
ing in  the  hold  of  a  vessel  was  injured  by  a  piece  of  lum- 
ber sent  down  through  a  chute  by  a  person  working  on  the 
pier.  It  was  held  that  admiralty  had  jurisdiction  of  such 
an  action. 

In  the  Strabo,24  a  workman  attempted  to  leave  a  ship  by 
a  rope  on  the  ship,  which  was  not  securely  fastened.  In 
consequence,  he  fell,  being  partly  injured  before  he  struck 
the  dock,  but  mainly  by  striking  the  dock.  Judge  Thomas, 
in  an  opinion  reviewing  and  classifying  the  authorities,  up- 
held the  jurisdiction  on  the  ground  that  the  ladder  was  on 
the  ship,  the  man  himself  was  on  the  ship  when  he  started 
in  his  fall,  that  there  was  some  injury  before  he  struck  the 

2i  193  Mich.  64,  159  N.  TV.  340. 

22  (D.  C.)  60  Fed.  912. 

§  99.     2  3  (D.  C.)  69  Fed.  646. 

24  (D.  C.)  90  Fed.  110 ;    Id.,  98  Fed.-  99S,  39  C.  C.  A.  375. 


202         ADMIRALTY  JURISDICTION  IN  MATTERS  OF  TORT        (Ch.  9 

ground,  and  that  a  mere  aggravation  of  the  injury  after  he 
struck  the  ground  did  not  prevent  the  jurisdiction  from  at- 
taching.   On  appeal  his  decision  was  affirmed. 

The  line  between  these  cases  and  those  of  the  type  of  the 
Haxby  -'"  is  a  delicate  one.  As  Judge  McPherson  well  said 
in  the  Haxby,  refinement  is  unavoidable  when  we  are  deal- 
ing with  questions  on  the  border  line  between  two  jurisdic- 
tions. 

The  result  may  be  summed  up  by  the  statement  that,  if  a 
complete  cause  of  action  arises  from  the  accident  on  land, 
the  fact  that  it  is  aggravated  or  the  measure  of  recovery 
increased  on  navigable  water  does  not  confer  jurisdiction  on 
the  admiralty.  And  the  converse  is  true  as  to  causes  of  ac- 
tion originating  on  a  ship. 

DETACHED  STRUCTURES  IN  NAVIGABLE 
WATERS 

100.  Detached  piers,  piles,  or  structures  attached  to  the  bot- 
tom, but  surrounded  by  water,  are  within  the  ju- 
risdiction. 

The  principle  that  wharves,  bridges,  and  piers  are  parts 
of  the  shore  applies  to  those  which  are  attached  directly  or 
intermediately  through  others  to  the  bank  or  shore  line. 
But  piles  and  structures  attached  to  the  bottom  and  sur- 
rounded by  water  are  within  navigable  waters,  and  it  has 
long  been  held  that  admiralty  has  jurisdiction  of  suits  for 
injuries  inflicted  by  them.  On  principle  it  ought  also  to 
have  jurisdiction  of  suits  for  injuries  received  by  them,  as 
they  can  hardly  be  considered  extensions  of  the  shore,  but 
this  has  been  settled  only  recently. 

In  Philadelphia  &  Havre  de  Grace  Steam  Towboat  Co. 
v.  Philadelphia,  W.  &  B.  R.  Co.,28  a  pile  driven  in  a  channel 

25  (D.  C.)  94  Fed.  1016;    (D.  C.)  95  Fed.  170. 

§  100.    "Fed.  Cas.  No.  11,085;    Philadelphia   W.  &  r,.  R.  Co.  v, 


!§   100)       DETACHED  STRUCTURES  IN  NAVIGABLE  WATERS        203 

of  a  navigable  river  inflicted  injuries  upon  a  tug-  navigating 
the  river.  It  was  held  that  this  cause  of  action  was  cog- 
nizable in  the  admiralty. 

In  ATLEE  v.  NORTHWESTERN  UNION  PACKET 
CO.,27  a  pier  erected  in  a  navigable  stream,  and  unlawfully 
obstructing  navigation,  inflicted  injuries  upon  a  barge  nav- 
igating the  river.  The  court  held  that  jurisdiction  attached 
in  such  case. 

There  are  many  instances  of  suits  for  damages  caused  by 
sunken  anchors  or  wrecks  attached  to  the  bottom.28 

On  the  other  hand,  the  converse  of  this,  that  the  admiral- 
ty has  jurisdiction  also  of  suits  for  injuries  received  by  such 
structures,  has  been  settled  by  two  recent  Supreme  Court 
cases.  In  the  Blackheath  29  jurisdiction  was  sustained  of 
a  suit  for  injuries  inflicted  by  a  ship  on  a  detached  lighthouse 
surrounded  by  navigable  water,  or  a  "bug"  lighthouse  as  it 
is   usually   called. 

And  in  the  Raithmoor  80  the  same  principle  was  applied 
to  the  structure  in  use  during  the  construction  of  such  a  bea- 
con. 

In  England  it  has  been  decided  that  suits  for  damage  done 
by  ships  to  oyster  grounds  under  navigable  waters  are  with- 
in the  jurisdiction,  but  the  decision  turns  somewhat  on  the 
language  of  their  statute.31 

Philadelphia  &  H.  de  G.  Steam  Towboat  Co.,  23  How.  209,  16  L.  Ed. 
433.  See,  also,  State  of  Maryland  v.  Miller,  194  Fed.  775,  114  C.  C. 
A.  495;  Evans  v.  Western  Timber  &  Logging  Co.  (D.  C.)  201  Fed. 
461. 

-"  21  Wall.  389,  22  L.  Ed.  619.  See,  also,  Panama  R.  Co.  v.  Napier 
Shipping  Co.,  166  U.  S.  280,  17  Sup.  Ct.  572,  41  L.  Ed.  1004. 

28  Utopia,  [1893]  A.  C.  492;  Ball  v.  Berwind  (D.  C.)  29  Fed.  541; 
Snark,  [1900]  P.  105. 

20  195  U.  S.  361,  25  Sup.  Ct.  46,  49  L.  Ed.  236. 

so  241  U.  S.  166,  36  Sup.  Ct.  514,  60  L.  Ed.  937. 

si  Swift,  [1901]  P.  D.  168. 


204         ADMIRALTY  JURISDICTION  DN  MATTERS  OF  TORT        (Ch.  9 


TORTS  ARISING  FROM  RELATION  OF  CREW  TO 
VESSEL  OR  OWNER 

101.  1.  For  injury  by  accident  the  seaman  is  entitled  to  no 
monetary  indemnity  in  the  nature  of  damages. 

2.  For  injury  from  negligence,  there  is  likewise  no  right 

to  such  indemnity,  unless  such  negligence  consti- 
tutes a  breach  of  some  contractual  duty. 

3.  For  injury  intentionally  inflicted,  there  is  likewise  no 

right  to  such  indemnity,  unless  it  is  a  breach  of 
some  contractual  duty  or  an  act  by  the  offender 
within  the  scope  of  his  employment. 

4.  For  injury  received  in  the  service  of  the  ship,  the  sea- 

man is  entitled  to  "maintenance  and  cure"  in  the 
absence  of  wilful  misconduct. 

5.  The  liability  is  in  rem  and  in  personam,  except  in  case 

of  assaults;    where  it  is  in  personam  only. 

Admiralty  has  its  own  doctrines  as  to  the  relative  rights 
and  obligations  of  shipowner  and  crew,  dating  back  to  its 
early  classics  and  growing  out  of  the  peculiar  nature  of  the 
service.    The  black  letter  is  a  summary.32 

This  is  the  doctrine,  irrespective  of  recent  legislation. 
How  far  it  is  affected  by  such  legislation  will  appear  later. 

Injuries  by  Accident 

Regardless  of  any  question  of  negligence  short  of  a  will- 
ful misconduct  on  either  side,  a  seaman  has  no  right  of  ac- 
tion sounding  in  damages  for  such  injuries,  but  only  a  right 

sz  This  summary  is  taken  almost  verbatim  from  an  article  by  Mr. 
Fitz-llenry  Smith,  Jr.,  of  Boston,  entitled  "Liability  for  Injuries  to 
Seamen,"  and  published  in  19  Harvard  Law  Review,  418.  In  fact 
this  section  of  the  main  text  is  hardly  more  than  a  condensation  of 
this  excellent  and  accurate  article,  bringing  it  down  to  date  and 
showing  the  changes  wrought  by  recent  legislation.  The  article  was 
published  in  1906. 


§   101)       RELATION   OF   CREW   TO   VESSEL  OR  OWNER  205 

to  proper  treatment,  as  far  as  the  conditions  admit,  looking 
to  his  cure.33 

Injuries  Resulting  from  Negligence 

The  seaman  cannot  recover  beyond  maintenance  and  cure 
for  negligence  in  navigation  or  for  any  act  of  the  master  or 
crew  not  in  performance  of  a  personal  duty  of  the  owner.34 

The  best  known  duty  of  the  master  is  the  obligation  to 
furnish  reasonably  safe  appliances.  This  is  a  contractual 
duty  to  a  seaman,  and  while  analogous  to  a  similar  common- 
law  duty  of  the  master  to  an  employee,  it  did  not  spring 
from  it  but  from  the  admiralty  law. 

For  a  breach  of  this  duty,  the  owner  is  liable,  not  only 
for  maintenance  and  cure,  but  for  compensatory  damages.35 

Another  personal  duty  of  the  owner  is  imposed  by  various 
statutes  in  connection  with  food  and  medicines  needed  for 
the  outfit  of  a  ship  while  in  service.  These  are  too  numerous 
to  permit  discussion  in  detail.  For  a  failure  to  comply  with 
them  the  seaman  can  recover  damages  beyond  maintenance 
and  cure.36 

Intentional  Injuries 

The  better  opinion  is  that  one  of  the  contractual  duties 
both  of  the  owner  and  master  is  a  general  duty  of  protecting 
the  seaman  from  cruelty  or  ill  usage.37 

33  Osceola,  189  U.  S.  15S,  23  Sup.  Ct.  483,  47  L.  Ed.  760;  Dougher- 
ty v.  Thompson-Lockhart  Co.  (D.  C.)  211  Fed.  224;  Bouker  No. 
2,  241  Fed.  831,  154  C.  C.  A.  533 ;  Sorensen  v.  Alaska  S.  S.  Co.  (D. 
C.)  243  Fed.  280;   Id.,  247  Fed.  294,  159  C.  C.  A.  38S. 

3  4  C.  S.  Holmes  (D.  C.)  212  Fed.  525;  Id.,  220  Fed.  273,  136  C.  C. 
A.  2S9 ;  Tropical  Fruit  S.  S.  Co.  v.  Towle,  222  Fed.  867,  138  C.  C.  A. 
293. 

3  5Touawanda  Iron  &  Steel  Co.  in  re  (D.  C.)  234  Fed.  198; 
Themistocles,  235  Fed.  81,  148  C.  C.  A.  575 ;  Globe  S.  S.  Co.  v.  Moss, 
245  Fed.  54,  157  C.  C.  A.  350. 

seRence  (D.  O.)  46  Fed.  805;  T.  F.  Oakes  (D.  C.)  82  Fed.  759; 
Edward  R.  West  (D.  C.)  212  Fed.  287 ;  Silver  Shell  (D.  C.)  255  Fed. 
340. 

3  7  19  Harvard  Law  Rev.  427,  433,  434. 


206        ADMIRALTY  JURISDICTION  IN  MATTERS  OF  TORT        (Ch.  9 

This  necessarily  includes  liability  for  the  personal  act 
of  the  master,  or  of  the  mate  while  acting  as  master.38 

But  it  should  not  impose  any  liability  for  a  single  act  of 
violence  by  an  officer  out  of  the  line  of  his  duty,  or  by 
another  seaman  at  all.39 

Duty  of  Maintenance  and  Cure 

Though  the  owner  is  not  liable  beyond  maintenance  and 
cure,  where  there  has  been  no  breach  of  his  personal  duties, 
he  is  liable  also  for  any  failure  to  properly  perform  this  duty, 
and  there  is  also  a  liability  in  rem.40 

The  Avord  "cure"  in  this  connection  is  probably  used  in 
the  sense  of  the  Latin  word  from  which  it  is  derived ;  that 
is,  "care."  41  It  could  not  possibly  impose  the  duty  of  com- 
plete restoration  to  health. 

This  doctrine  imposes  the  duty  of  sending  for  a  physician 
if  the  ship  is  in  reach  of  one ;  and  if  the  seaman's  condition 
requires  it  while  the  ship  is  on  a  voyage,  it  imposes  the  duty 
on  her  to  put  into  port,  if  one  is  reasonably  accessible.42 

In  spite  of  the  fact  that  the  courts  constantly  use  the  ex- 
pression "fellow  servant"  in  discussing  these  questions,  the 
doctrine  had  its  birth  in  admiralty  antecedent  to  and  inde- 
pendent of  the  common-law  doctrine  of  fellow  service.  Its 
use  in  these  cases  only  breeds  confusion.43 

Remedies 

For  a  breach  of  any  of  these  duties  of  the  owner  the  ship 
is  liable  in  rem,  and  the  owner  is  liable  in  personam.     But 

88  Gabrielson  v.  Waydell  (O.  C.)  67  Fed.  342;  Lizzie  Burrill  (D.  C.) 
115  Fed.  1015;  Memphis  &  Newport  Packet  Co.  v.  Hill,  122  Fed. 
246,  58  C.  C.  A.  610. 

-9  10  Harvard  Law  Rev.  4r,9. 

*o  Osceola,  189  U.  S.  158,  23  Sup.  Ct.  4S3,  47  L.  Ed.  760;  Bunker 
Hill  (D.  C.)  198  Fed.  587. 

41  Atlantic,  Fed.  Cas.  No.  020.     (Latin  "cura.") 

*a  Iroquois,  194  D.  S.  240,  24  Sup.  Ct.  640,  48  L,  Ed.  955;  Gov- 
ernor (D.  C.)  230  Fed.    57;    Van  Der  Duyn  (D.  C.)  251  Fed.  71*;. 

9  Harvard   Law  Rev.   111.    See,  also,  an  interesting  and  con- 


§  101)         RELATION   OF   CREW   TO   VESSEL  OR   OWNER 


207 


for  an  assault  pure  and  simple  the  only  remedy  is  in  per- 
sonam under  Supreme  Court  admiralty  rule  16.4* 

Effect  of  Recent  Legislation  on  the  Original  Doctrine 

Section  20  of  the  act  of  March  4,  1915,  for  the  protection 
of  merchant  seamen  (commonly  known  as  the  La  Follette 
Act)  provides: 

"In  any  suit  to  recover  damages  for  any  injury  sustained 
on  board  vessel  or  in  its  service,  seamen  having  command 
shall  not  be  held  to  be  fellow  servants  with  those  under  their 
authority."  45 

Since  the  doctrine  under  discussion  originates  in  the  ad- 
miralty independent  of  any  question  of  fellow  service  at 
common  law,  the  materiality  of  this  provision  is  not  very 
evident.  Yet  there  are  some  decisions  gravely  applying 
this  doctrine,  and  holding  that  seamen  of  mere  superior 
grade  of  service  are  not  fellow  servants.  The  natural  mean- 
ing of  "seamen  having  command"  would  be  seamen  having 
command  of  the  ship,  not  merely  those  in  charge  of  a  num- 
ber of  seamen  at  work.  A  legislator  familiar  with  the  doc- 
trine of  fellow  service  would  use  some  such  term  as  "seamen 
of  superior  grade"  in  the  latter  case. 

But  all  these  cases  arose  from  injuries  due  to  defective  ap- 
pliances, which  is  a  personal  duty  of  the  owner,  not  in- 
volving any  question  of  grade  of  service  or  command.46 

But  in  Chelentis  v.  Luckenbach  S.  S.  Co.,47  decided  after 
the  last-mentioned  cases,  the  court  reiterates  the  doctrine 
of  the  admiralty  that  a  seaman  injured  by  causes  not  due 
to  the  master's  personal  negligence  is  limited  to   wages, 

vincing  discussion  of  fills  phase  of  the  subject  by  Mr.  Frederic  Cun- 
ningham, of  the  Boston  bar,  in  18  Harvard  Law  Rev.  294. 

44  19  Harvard  Law  Rev.  443;  Marion  Chilcott  (D.  C.)  95  Fed.  688; 
Lizzie  Burrill  (D.  C.)  115  Fed.  1015 ;    Sadie  Ion  (D.  C.)  153  Fed.  659. 

45  38  Stat.  1185  (U.  S.  Oomp.  St.  §  S337a). 

46  Colusa,  24S  FeTl.  21,  160  C.  C.  A.  161;  Baron  Napier,  249  Fed. 
126,  161  C.  C.  A.  ITS ;    Corrado  v.  Pedersen  (D.  C.)  249  Fed.  165. 

47  247  U.  S.  572,  38  Sup.  Ct.  501,  62  L.  Ed.  1171.  See,  also, 
Hoquiam,  253  Fed.  627,  165  C.  C.  A.  253. 


208        ADMIRALTY  JURISDICTION  IN  MATTERS  OF  TORT        (Ch.  9 

maintenance,  and  cure,  and  that  section  20  of  the  La  Fol- 
lette  Act  does  not  affect  the  question,  saying: 

"Section  20  of  the  Seamen's  Act  declares  'seamen  hav- 
ing command  shall  not  be  held  to  be  fellow  servants  with 
those  under  their  authority,'  and  full  effect  must  be  given 
this  whenever  the  relationship  between  such  parties  be- 
comes important.  But  the  maritime  law  imposes  upon  a 
shipowner  liability  to  a  member  of  the  crew  injured  at  sea 
by  reason  of  another  member's  negligence  without  regard 
to  their  relationship ;  it  was  of  no  consequence  therefore  to 
petitioner  whether  or  not  the  alleged  negligent  order  came 
from  a  fellow  servant;  the  statute  is  irrelevant.  The  lan- 
guage of  the  section  discloses  no  intention  to  impose  upon 
shipowners  the  same  measure  of  liability  for  injuries  suf- 
fered by  the  crew  while  at  sea  as  the  common  law  prescribes 
for  employers  in  respect  of  their  employes  on  shore." 

The  enactment  of  workmen's  compensation  laws  in  many 
states  has  given  rise  to  the  question  how  far  they  govern 
or  modify  the  general  admiralty  doctrine  as  to  parties  in- 
jured to  whom  an  admiralty  remedy  is  available.  This  is 
.settled  (as  far  as  a  decision  by  five  judges  against  four  can 
settle  it)  by  Southern  Pacific  Co.  v.  Jensen.48  Jensen  was 
a  longshoreman  employed  in  unloading  a  ship,  and  while 
still  on  the  ship  was  accidentally  killed.  The  New  York 
Compensation  Commission  awarded  his  widow  compensa- 
tion on  the  basis  of  the  New  York  statute.  On  appeal  to 
the  Supreme  Court  it  was  held  that  the  statute,  in  so  far  as 
it  attempted  to  modify  the  general  maritime  law  as  accepted 
by  the  federal  courts,  or  works  material  prejudice  to  its 
characteristic  features,  was  invalid,  and  that  the  saving  to 
suitors  of  a  common-law  remedy  did  not  apply  to  a  proceed- 
ing before  such  a  commission,  as  it  was  unknown  to  the 
common  law. 

This  decision  was  rendered  May  21,   1917.     Thereupon 

*R  244  U.  S.  20.").  .°>7  Sup.  Ct.  524,  61  L.  Ed.  1086,  L.  It.  A.  1918C, 
451,  Ann.  Cas.   L917E,  900. 


§  102)  PERSONAL   TORTS  209 

Congress  amended  section  24(3)  and  section  256  of  the  Ju- 
dicial Code  go  as  to  make  the  first  part  read: 

"Of  all  civil  causes  of  admiralty  and  maritime  jurisdic- 
tion, saving-  to  suitors  in  all  cases  the  right  of  a  common- 
law  remedy  where  the  common  law  is  competent  to  give 
it,  and  to  claimants  tlie  rights  and  remedies  under  the  work- 
men's compensation  law  of  any  state." 

The  italicized  part  is  the  addition.4,9 

Since  this  amendment  it  has  been  held  in  Maryland  that 
giving  notice  of  claim  under  the  Maryland  statute  was  not 
a  waiver  of  any  right  in  admiralty.  The  case  however  was 
influenced  if  not  entirely  controlled  by  the  fact  that  the 
claimant  at  the  time  of  the  notice  was  not  in  a  condition  to 
appreciate  what  he  was  doing.50 

PERSONAL  TORTS  ARISING  FROM  RELATION  OF 
PASSENGERS  TO  VESSEL 

102.  The  relation  between  the  passengers  and  the  ship  or 
her  owners  is  governed  by  the  general  law  of  pas- 
senger carriers,  except  in  so  far  as  it  is  modified  by 
statute. 
The  federal  statutes  contain  many  provisions  looking  to 
the  safety  of  passengers  and  their  accommodations.    Chap- 
ter 6,  tit.  48,  of  the  Revised  Statutes  (sections  4252^1-289), 
and  chapter  2,  tit.   52,  of  the  Revised   Statutes    (sections 
4463-4500),  contain  these  provisions  in  detail.*     They  con- 

49  40  Stat.  395  (U.  S.  Comp.  St.  1918,  §§  991,  1233).  Amendment 
held  unconstitutional  by  Supreme  Court  May  17,  1920.  Knicker- 
bocker Ice  Co.  v.    Stewart.  252  U.  S. ,  40  Sup.  Ct.  438,  64  L.  Ed. . 

so  Siebert  v.  Patapsco  Ship  Ceiling  &  Stevedore  Co.  (D.  C.)  253 
Fed.  685. 

*  These  sections,  as  they  stood  in  the  Revised  Statutes,  have  been 
much  modified  by  subsequent  legislation,  some  having  been  repealed 
and  many  amended.  But  their  provisions  have  been  carried  into 
the  more  recent  acts  in  amplified  form,  and  in  the  direction  of  more 
rigid  requirements.  They  cannot  be  discussed  for  lack  of  space. 
Hughes, Adm.  (2d  Ed.) — 14 


210         ADMIRALTY  JURISDICTION  IN  MATTERS  OF  TORT        (Ch.  9 

tain,  in  general,  regulations  to  insure  a  skillful  crew,  limita- 
tion of  the  number  of  passengers  carried,  many  provisions 
against  fire,  requirements  for  boats,  life  preservers,  and  oth- 
er appliances  necessary  in  wrecks,  and  they  prescribe  heavy 
penalties  for  a  violation  of  any  of  these  provisions.  But, 
outside  of  these  statutes,  any  improper  treatment  of  a  pas- 
senger by  any  of  the  crew  inflicted  within  the  line  of  his 
duty  is  the  subject  of  an  action.  For  instance,  in  the  Wil- 
lamette Valley,51  a  passenger  was  allowed  to  recover  dam- 
ages for  refusal  to  accept  a  first-class  ticket  and  for  giving 
him  second-class  accommodations. 

In  the  Yankee,52  a  vigilance  committee  escorted  an  ob- 
noxious citizen  to  a  ship  in  the  harbor,  and  recommended 
him  to  take  a  sea  voyage,  and  the  ship  carried  him  away. 
He  sued  the  owners  of  the  ship  in  personam,  and  the  court 
sustained  the  jurisdiction. 

A  passenger  may  proceed  in  rem  for  any  actionable  in- 
jury received  aboard  a  ship,  except  assaults.53 

OBLIGATIONS    TO    PERSONS    RIGHTFULLY    ON 
VESSEL,  BUT  BEARING  NO  RELATION  TO  IT 

103.  Persons  rightfully  on  a  vessel  are  entitled  to  demand 
the  exercise  of  ordinary  care  towards  them  on  the 
part  of  the  vessel,  under  the  doctrine  of  implied  in- 
vitation. 

Tn  LEATHERS  v.  BLESSING,54  a  patron  of  a  steamer, 
who  was  expecting  some  cargo  by  her,  went  aboard  to  make 

They  will  be  found  in  U.  S.  Comp.  St.  1916,  §§  7997,  7999-800G,  8011- 
803  I.  8225  8276. 

§  102.     ei  (D.  C.)  71  Fed.  712. 

B2  Fed.  Cas.  No.  18,124,  1  McAll.  467. 

5s  City  of  Panama,  101  U.  S.  4G2,  25  L.  Ed.  1081;  Vueltabajo 
(D.  C.)  163  Fed.  594.  Also  at  common  law.  Austro-Amorican  S.  S. 
Co.  v.  Thomas,  248  Fed.  231,  160  C.  C.  A.  309,  L.  K.  A.  1918D,  873. 

§  103.     b*105  U.  S.  626,  26  L.  Ed.  1192, 


§  103)     OBLIGATIONS  TO  STRANGERS  RIGHTFULLY  ABOARD      211 

inquiries  about  it,  and  was  injured  by  a  bale  of  cotton  fall- 
ing on  him.  He  libeled  in  personam,  and  the  court  allow- 
ed a  recovery. 

The  most  frequent  cases  of  this  sort  are  those  of  labor- 
ers employed  in  and  about  a  vessel  in  port.  For  instance, 
suppose  that  stevedores  are  employed  as  independent  con- 
tractors to  load  or  discharge  a  vessel,  whether  by  the  vessel 
herself  or  her  charterers.  In  such  case  the  vessel  is  not 
responsible  for  the  acts  of  the  stevedores'  men  causing  dam- 
age.55 

The  vessel  would  be  responsible  for  the  act  of  a  member 
of  its  crew  if  acting  at  the  time  in  its  service,  though  not  if 
acting  at  the  time  in  the  stevedore's  service.56 

If  the  vessel  is  properly  fitted  up  and  constructed  as  usu- 
al, she  is  not  responsible  to  any  one  who  falls  into  one  of 
her  ordinary  openings.  These  questions  have  frequently 
arisen  in  the  case  of  men  falling  into  open  hatchways. 

The  duties  and  obligation  of  the  vessel  in  reference  to 
open  hatchways  have  been  the  subject  of  much  litigation. 
It  has  frequently  been  held  that,  so  far  as  the  crew  of  a 
vessel  is  concerned,  and  as  regards  workmen  upon  the  ves- 
sel, like  stevedores  or  their  employes,  it  is  not  negligence 
to  leave  a  hatchway  open.  Such  men  are  supposed  to  be  fa- 
miliar with  the  construction  of  a  ship,  and  to  know  that 
hatchways  are  necessary  structures,  and  are  made  to  be 
left  open  for  the  purpose  of  loading.  If,  therefore,  the  con- 
struction of  the  ship  and  its  hatchways  is  proper,  and  there 
is  no  such  defect  about  them  as  could  be  discoverable  by 
the  exercise  of  ordinary  care,  the  fact  that  they  are  left 
open  would  not  give  a  right  of  action  against  the  ship,  un- 
less they  were  left  open  at  a  point  where  the  laborers  up- 
on a  ship  would  not  naturally  expect  to  find  them  open,  and 

55ITSTDRANI,  41  C.  C.  A.  511,  101  Fed.  596;  Elleric  (D.  C.)  134 
Fed.  146. 

^Joseph  John,  S6  Fed.  471.  30  C.  C.  A.  199;  Joseph  B.  Thomas, 
86  Fed.  658,  30  C.  C.  A.  333,  46  L.  R.  A.  58. 


212         ADMIRALTY  JURISDICTION  IN  MATTERS  OF  TORT       (Ch.  9 

had  no  rail  or  guard  rope  around  them,  or  light  to  indicate 
their  existence.  As  the  cases  well  say,  the  doctrine  of  holes 
in  highways  or  places  where  people  are  accustomed  to  re- 
sort has  no  application  to  such  places,  for  the  deck  of  a 
ship  is  not  a  highway,  and  men  experienced  in  loading  ships 
are  assumed  to  take  the  risk  of  such  ordinary  openings  as 
would  be  expected  to  exist  upon  a  ship.  If  the  hatchway 
was  in  every  respect  proper  as  far  as  the  construction  goes, 
and  there  was  no  negligence  in  uncovering  it,  and  not  prop- 
erly guarding  it,  and  this  was  done  by  the  stevedore  as  an 
independent  contractor,  the  ship  would  not  be  liable  for  his 
act.57 

A  hatchway  left  open  by  some  one  connected  with  the 
ship  may,  however,  cause  injuries  to  a  passenger  which 
would  entitle  him  to  sue  where  the  crew  or  stevedores 
could  not,  because  a  passenger  is  not  supposed  to  be  as 
familiar  with  the  construction  of  a  ship  as  such  men,  and 
the  measure  of  duty  of  a  carrier  towards  a  passenger  is  a 
much  higher  one.  If  there  is  an  unguarded  opening  in  parts 
of  the  ship  where  passengers  are  permitted  to  go,  and  an  in- 
jury is  received  in  consequence,  the  passenger  could  pro- 
ceed against  the  ship.58 

67  Jersey  City  (D.  C.)  46  Fed.  134;  Home  v.  George  H.  Ham- 
mond Co.,  71  Fed.  314,  18  C.  C.  A.  54;  Glaus  v.  Steamship  Co.,  89 
Fed.  646,  32  C.  C.  A.  282;  Dwyer  v.  National  S.  S.  Co.  (C.  C.)  4  Fed. 
493 ;  Saratoga  (D.  C.)  87  Fed.  349 ;  Id.,  91  Fed.  221,  36  C.  C.  A.  208 ; 
Auchenarden  (D.  C.)  100  Fed.  S95;  Roymann  v.  Brown,  105  Fed. 
250,  44  C.  C.  A.  464;  INDRANI,  101  Fed.  596,  41  C.  C.  A.  511; 
Consolidation  Coastwise  Co.  v.  Conley,  250  Fed.  679,  163  C.  C.  A.  25, 

ss  Furnessia  (D.  C.)  35  Fed.  798.  But,  if  he  goes  where  he  has 
no  business  to  go,  he  cannot  recover.  Elder  Dempster  Shipping  Co. 
v.  Pouppirt,  125  Fed.  732,  60  C.  C.  A.  500. 


§104)       LIABILITY  AS  BETWEEN  VESSEL  AND  CONTRACTOR      213 

LIABILITY  AS  BETWEEN  VESSEL  AND  INDE- 
PENDENT CONTRACTOR 

104.  The  vessel  is  not  liable  for  injuries  caused  by  independ- 
ent contractors,  but  would  be  for  injuries  caused 
by  its  lack  of  ordinary  care  in  furnishing  proper 
tackle,  if  the  contract  of  loading  or  discharging  re- 
quires it  to  allow  the  use  of  its  tackle. 

Frequently,  when  charterers  are  loading  a  ship,  the  char- 
ter party  provides  that  the  steamer  is  to  furnish  use  ot 
tackle  and  engines.  In  such  case,  if  the  stevedore  is  an  em- 
ploye, and  not  an  independent  contractor,  the  ship  is  re- 
sponsible for  injuries  caused  by  lack  of  reasonable  care  in 
selecting  suitable  appliances.59 

But  suppose  that  the  ship  makes  such  a  contract  with 
the  charterer  to  allow  the  use  of  its  tackle,  and  the  steve- 
dore is  an  independent  contractor,  selecting  his  own  men. 
Suppose  that  in  such  case,  while  the  stevedore  is  working 
with  the  ship's  tackle,  one  of  his  men  is  injured  by  a  defect 
in  that  tackle.  The  ship  would  not  then  be  responsible  if 
reasonable  care  had  been  used  in  the  selection  and  upkeep 
of  its  appliances,  and  if  they  were  reasonably  sufficient  for 
the  work  for  which  they  were  designed ;  but  the  responsi- 
bility, if  any,  would  be  upon  the  stevedore  for  subjecting  it 
to  an  unusual  strain  or  for  other  improper  use. 

But  the  ship  would  be  responsible  for  an  injury  due  to  de- 
fects arising  from  lack  of  ordinary  care  in  the  above  partic- 
ulars.60 

The  English  decisions  are  much  narrower  than  the  Amer- 
ican.    In  Heaven  v.  Pender,61  a  dock  company  erected  a 

§  104.     59  Elton,  83  Fed.  519,  31  C.  C.  A.  496. 

eo  Beechdene  (D.  C.)  121  Fed.  593 ;  Student,  243  Fed.  S07,  156  C 
C.  A.  319;  Frazier  v.  Luckenbach  (D.  C.)  248  Fed.  1011;  McDon- 
ough  v.  International  Navigation  Co.  (D.  C.)  249  Fed.  248;  Colon, 
249  Fed.  460,  161  C.  C.  A.  418. 

6i9  Q.  B.  D.  302.     See,  also,  Earl  v.  Lubbock,  [1905]  1  K.  B.  253. 


-14         ADMIRALTY  JURISDICTION  IN  MATTERS  OF  TORT        (Ch.  9 

staging  around  a  ship  under  a  contract  with  the  shipowner. 
A  man  employed  by  the  shipowner  to  paint  the  ship  fell,  in 
consequence  of  the  giving  way  of  this  staging.  He  sued  the 
dock  company.  Justices  Field  and  Cave,  of  the  Queen's 
Bench,  held  that  there  was  no  privity  between  him  and  the 
dock  company,  and  that  he  could  not  recover.  The  case 
was  taken  to  the  Court  of  Appeals,  where  this  decision  was 
reversed,  and  he  was  allowed  to  recover. 

But  later  in  CALEDONIAN  RY.  CO.  v.  MULHOL- 
LAND  62  this  case  was  much  limited,  and  placed  on  the 
ground  that  the  party  was  impliedly  invited  to  come  on 
its  premises  by  the  dry  dock  company,  and  to  use  this  stag- 
ing, and  that  it  was  in  its  condition  a. trap,  thus  bringing 
the  case  under  another  well-known  principle  of  the  law 
of  torts. 

CALEDONIAN  RY.  CO.  v.  MULHOLLAND  is  inter- 
esting as  bearing  out  this  distinction.  There  a  railway  com- 
pany contracted  with  a  gas  company  to  deliver  coal  at  a 
certain  point.  Two  coal  cars  were  delivered  at  that  point 
to  another  company,  which  received  them  for  the  gas  com- 
pany. While  in  charge  of  the  second  company,  one  of  its 
servants  was  killed,  owing  to  the  fact  that  the  brakes  were 
out  of  order,  and  could  not  stop  the  cars.  His  administra- 
tor sued  the  first  company  on  account  of  this  defect  in  their 
cars,  but  the  House  of  Lords  held  that  the  first  company 
owed  him  no  duty,  and  that  he  could  not  recover. 

DOCTRINE  OF  IMPUTED  NEGLIGENCE 

105.  Negligence  on  the  part  of  a  vessel  is  not  now  imputa- 
ble to  a  person  injured  while  on  board  the  vessel, 
but  who  is  not  connected  with  its  management  or 
navigation. 

The  doctrine  <>f  imputed  negligence,  by  which  a  person 
on  one  ship  or  vehicle,  though  not  identified  with  its  man- 

[1898]  A.  C.  216. 


§  106)  MISCELLANEOUS   MARINE   TORTS  215 

agement  or  navigation,  is  chargeable  with  the  negligence 
of  his  own  vehicle,  and  cannot,  in  case  of  such  negligence, 
proceed  against  the  other  vessel  if  also  negligent,  has  been 
repudiated  by  the  modern  authorities.  As  the  law  now 
stands,  a  person  injured  on  a  vessel  in  collision  can  proceed 
against  either  or  both  as  either  or  both  are  negligent.83 

MISCELLANEOUS  MARINE  TORTS 

106.  Admiralty  has  jurisdiction  of  any  tort  on  navigable 
waters  which  creates  a  cause  of  action. 

A  common  instance  of  this  is  assault.  Under  admiralty 
rule  16  there  is  no  remedy  in  rem  against  the  ship  for  such 
assaults,  but  there  would  be  against  the  owner  if  the  as- 
sault was  made  by  any  of  the  crew  within  the  course  of  his 
employment,  and  there  certainly  would  be  against  the  man 
who  makes  the  assault.64 

§  105.  6  3  New  York,  P.  &  N.  R.  Co.  v.  Cooper,  85  Va.  939,  9  S. 
E.  321;  LITTLE  v.  HACKETT,  116  U.  S.  366,  6  Sup.  Ct.  391,  29 
L.  Ed.  652 ;  Bemina,  13  A.  C.  1 ;  Contino  v.  Wilmington  Steamboat 
Co.  (D.  C.)  226  Fed.  991. 

§  106.  6  4  Chamberlain  v.  Chandler,  3  Mason,  242,  Fed.  Cas.  No, 
2,575;  Plummer  v.  Webb,  1  Ware,  69,  Fed.  Cas.  No.  11,234;  Steele 
v.  Thaeher,  1  Ware,  85,  Fed.  Cas.  No.  13,34S;  Turbett  v.  Dunlevy, 
Fed.  Cas.  No.  14,241 ;  Miami  (D.  C.)  78  Fed.  818 ;  Id.,  93  Fed.  218, 
35  C.  C.  A.  281.  Whether  the  master,  in  assaulting  a  person  aboard 
ship,  is  acting  in  the  course  of  his  employment — or,  in  other  words, 
whether  the  vessel  or  her  owner  is  responsible  for  a  willful  or  in- 
tentional assault — depends  on  the  ordinary  principles  of  the  law 
of  torts.  As  is  well  known,  it  was  for  a  long  time  the  doctrine  of 
the  courts  that  such  an  act  was  not  within  the  course  of  the  serv- 
ant's employment,  and  that  the  master  was  not  liable  therefor,  ex- 
cept in  cases  of  carriers  and  innkeepers.  Recent  decisions  have 
much  modified  this  doctrine,  but  it  is  hardly  within  the  purview 
of  this  treatise  to  discuss  it  elaborately.  In  the  last-cited  case  the 
court  held  that  such  an  assault  of  the  master  upon  a  stowaway 
aboard  a  ship  was  not  within  his  employment,  and  did  not  render 
the  vessel  or  owner  liable.     See,  on  the  general  subject,  the  recent 


216        ADMIRALTY  JURISDICTION  IN  MATTERS  OP  TORT        (Ch.  9" 

But,  though  a  physical  wrong  done  by  the  master  of  the 
ship  is  an  assault,  in  the  sense  of  admiralty  rule  16,  for 
which  the  injured  party  cannot  proceed  in  rem,  this  princi- 
ple does  not  apply  to  his  dog.  Accordingly,  where  a  pilot 
who  was  rightfully  on  board  was  bitten  by  a  dog  in  the 
cabin  where  he  had  been  assigned,  the  court  allowed  him  to 
proceed  in  rem  against  the  vessel.65 

The  right  of  a  parent  to  sue  for  an  abduction  of  his  son  is 
an  instance  of  such  a  marine  tort.66 

So  the  right  of  a  husband  to  sue  for  injuries  sustained  by 
his  wife  on  navigable  waters.67 

So  a  suit  for  the  illegal  seizure  of  a  vessel.68 

Until  quite  recently  locality  has  been  assumed  by  the 
American  decisions  as  the  sole  criterion  in  passing  upon  the 
question  whether  a  tort  is  maritime  or  not.  But  in  Camp- 
bell v.  H.  Hackfeld  &  Co.69  the  Circuit  Court  of  Appeals 
for  the  Ninth  Circuit  attempted  to  add  another  qualification. 

It  was  a  suit  for  personal  injuries  by  an  employe  of  a 
stevedoring  company  against  his  employer  for  negligence 
during  the  unloading  of  a  vessel  in  the  port  of  Honolulu. 
No  negligence  of  the  ship  or  any  of  its  crew  was  involved. 
It  was  decided  that  in  order  to  constitute  a  maritime  tort, 
it  must  not  only  occur  on  navigable  waters,  but  must  also 

English  cases  of  Hanson  v.  Waller,  [1901]  1  Q.  B.  390,  and  Sander- 
son v.  Collins,  [1904]  1  K.  B.  G28. 

en  Lord  Derby  (C.  C.)  17  Fed.  ^(i.">.  In  2  Seld.  Select  Pleas  in  Adm. 
(Introduction,  lxxxii),  in  1G42,  "the  master  of  the  Success  sues  the 
master  of  the  Sunflower  for  injuries  to  Richard  Child,  one  of  his 
crew,  by  a  'certaine  wilde  beaste  called  a  munkey,  ape,  or  baboone' 
which  he  kept  for  his  pleasure,  'or  some  other  respect'  but  unchained, 
so  that  it  escaped,  and  'without  any  provocation  or  cause  given 
him  by  the  said  Richard  Child'  seized  upon  and  bit  him  severely." 

eo  Tillmore  v.  Moore  (D.  C.)  4  Fed.  231. 

87  New  York  &  Long  Branch  Steamboat  Co.  v.  Johnson,  195  Fed. 
740,  115  C  C.  A.  540,  42  L.  R.  A.  i.V  S.)  640. 

s  parte  Fassett,  1  IL!  r.  S.  479,  12  Sup.  Ct.  295,  35  L.  Ed.  10S7; 
Carolina  (D.  C.)  66  Fed,  mi::. 

so  125   Fed.  696,  <;l>  C.  C,  A.  274. 


§  106)  MISCELLANEOUS   MARINE   TORTS  217 

have  some  relation  to  a  vessel  or  its  owners,  and  that  the 
sole  fact  that  it  occurred  on  the  vessel  did  not  make  it  mar- 
itime where  the  parties  involved  in  the  controversy  were 
not  parties  for  whom  the  vessel  was  not  responsible. 

This  was  followed  in  the  St.  David  70  without  discussion 
of  the  principle  involved. 

But  in  Imbrovek  v.  Hamburg-American  Steam  Packet 
Co.71  Judge  Rose,  sitting  in  the  District  Court  of  Mary- 
land, in  a  case  precisely  similar,  sustained  the  jurisdiction 
of  the  court  as  based  on  locality,  regardless  of  relationship 
to  the  vessel,  and  also  because  stevedoring  was  essentially 
maritime  in  character.  His  decision  was  affirmed,  both  by 
the  Circuit  Court  of  Appeals  and  the  Supreme  Court, 
though  the  latter  court,  while  holding  that  stevedoring 
was  estentially  maritime,  did  not  absolutely  commit  itself 
to  the  proposition  that  locality  alone,  whether  connected 
with  a  ship  or  not,  is  sufficient  to  make  a  tort  maritime. 

The  American  authorities  are  reviewed  in  the  different 
opinions  in  this  case.  But  the  main  authority  on  which  the 
judges  relied  in  Campbell  v.  H.  Hackfeld  &  Co.  was  the 
English  case  of  Queen  v.  Judge.72 

It  was  an  application  to  a  common-law  court  for  a  man- 
damus to  compel  an  admiralty  court  to  take  jurisdiction  of 
a  suit  against  a  compulsory  pilot  for  damages  due  to  his 
negligence  in  a  collision.  (In  England  neither  vessel  nor 
owner  was  then  liable  for  the  negligence  of  a  compulsory 
pilot.)  The  court  denied  the  writ,  partly  on  the  ground  that 
no  precedent  could  be  found  for  such  a  suit,  and  partly  on 
the  ground  that  there  were  several  precedents  against  it, 
saying  that  it  made  no  difference  whether  it  was  a  case  of 

to  (D.  C.)  209  Fed.  985. 

7i  (D.  C.)  190  Fed.  229;  Atlantic  Transport  Co.  v.  Imbrovek,  193 
Fed.  1019,  113  ,C.  C.  A.  39S  (affirmed  without  opinion) ;  234  U.  S.  52, 
31  Sup.  Ct.  733,  58  L,  Ed.  1208,  51  L.  R.  A.  (X.  S.)  1157  (under  name 
of  Atlantic  Transport  Co.  of  West  Virginia  v.  Imbrovek). 

t-  [1S92]  1  Q.  B.  273. 


218         ADMIRALTY  JURISDICTION  IN  MATTERS  OF  TORT        (Ch.  9 

compulsory  or  voluntary  pilotage.  One  opinion  ends:  "I 
for  one  will  not  reopen  the  floodgates  of  admiralty  jurisdic- 
tion upon  the  people  of  this  country." 

It  has  been  pointed  out  more  than  once  that  the  Ameri- 
can jurisdiction  in  admiralty  is  not  shackled  by  the  chains 
riveted  upon  the  English  jurisdiction  in  consequence  of  the 
warfare  of  the  common-law  courts.  The  opinion  recogniz- 
es this  fact  and  dismisses  the  American  decisions  sum- 
marily from  consideration,  mentioning  the  fact  that  con- 
tracts of  marine  insurance  are  not  cognizable  by  the  Eng- 
lish admiralty,  though  a  recognized  subject  of  jurisdiction 
in  America.  English  cases  on  questions  of  jurisdiction 
must  therefore  be  used  in  America  with  great  caution. 

In  fact,  much  of  the  reasoning  in  this  case  has  been  ex- 
plained away  in  later  cases.73 

In  considering  the  special  question  whether  a  suit  would 
lie  in  admiralty  against  a  pilot,  several  decisions  to  the 
contrary  are  cited.  An  examination  of  them  will  show  that 
they  turned  largely  in  the  first  place  on  the  fact  that  the 
liability  of  an  English  pilot  is  limited  by  statute  and  is  cov- 
ered by  a  bond ;  and  the  English  courts  denied  the  admiral- 
ty jurisdiction  over  a  sealed  instrument.  These  decisions 
also  hold  that  jurisdiction  of  suits  against  a  pilot  is  not  con- 
ferred by  the  statutes  extending  the  jurisdiction  of  the  ad- 
miralty;  for  they  speak  of  "damage  done  by  any  ship.'' 
which  docs  not  cover  negligent  acts  of  a  pilot. 

After  discussing  these  decisions,  the  opinion  goes  on  to 
assert  that,  "from  beginning  to  end,  not  a  single  case  is  to 
be  found  in  the  books  which  shows  that  the  admiralty  court 
ever  entertained  such  a  case  as  this  against  a  pilot." 

But  in  the  later  case  of  the  Germanic,74  which  was  a  libc! 
in  rem  for  a  collision  between  two  ships,  an  application  was 
made  to  bring  in  a  compulsory  pilot  as  codefendant.     The 

78Theta,  [1893]  A.  C.  46& 
r*  [1896]  P.  84. 


§  106)  MISCELLANEOUS   MARINE   TORTS  219 

court,  not  doubting  its  jurisdiction,  refused  the  application 
solely  on  grounds  of  inconvenience. 

The  main  case  under  discussion  was  published  in  1892. 
In  1894  and  1897  the  Selden  Society  published  its  "Select 
Pleas  in  Admiralty,"  constituting  volumes  VI  and  XI  of 
its  publications.  They  were  edited  by  Mr.  R.  G.  Marsden, 
and  each  volume  contains  an  introduction  which  casts  a 
flood  of  new  light  upon  the  early  history  of  the  English 
admiralty,  which  long  had  criminal  as  well  as  civil  jurisdic- 
tion.   They  show  many  precedents  of  suits  against  pilots.75 

The  opinion  in  the  main  case  questions  the  jurisdiction 
of  the  admiralty  over  a  suit  against  the  master  personally 
for  a  collision. 

But  there  are  certainly  precedents  in  England  for  suits 
against  a  master.  In  the  Ruckers  76  Lord  Stowell  sustained 
a  libel  against  a  master  by  a  passenger  for  an  assault.  He 
had  the  old  records  searched,  and  sustained  jurisdiction 
"in  causes  of  damage  between  persons  who  were  not  con- 
nected by  any  relation  arising  from  official  situations  on 
board  the  ship."  This  decision  is  cited  with  approval  in 
the  Zeta.77  If  such  a  question  is  an  open  one  in  England, 
it  certainly  is  not  in  America,  as  Supreme  Court  admiralty 
rules  15  and  16  recognize  the  right. 

In  the  main  case  under  discussion  Kay,  J.  (at  page  310), 
states  as  an  argument  against  the  jurisdiction  that  the  lo- 
cality test,  if  applied  literally,  would  include  a  slander  on 
the  high  seas,  and  the  same  illustration  was  used  in  At- 
lantic Transport  Co.  v.  Imbrovek,  heretofore  cited.  The 
Selden  Society  publication  shows  precedents  for  just  such 
suits.78 

75  1  Select  PI.  Adm.  (Introduction)  lxvii,  lxx  [14];  Id.  102,  213. 
64 ;  197.  2  Id.  (Introduction)  xxviii,  xxix.  See,  also,  the  essay  by 
Mears  on  the  admiralty  jurisdiction  first  published  as  the  introduc- 
tory chapter  to  Roscoe's  Admiralty  Jurisdiction.  1903,  and  republish- 
ed in  2  Anglo-American  History,  312,  especially  327. 

76  4  C.  Rob.  73. 

Tt  [1S93]  A.  C.  at  p.  483. 

78  1    Select  PI.    Adm.    (Introduction)    lxix,   lxxxiii,    100,   212.     The 


220        ADMIRALTY  JURISDICTION  IN  MATTERS  OF  TORT        (Ch.  9 

And  there  are  many  precedents  of  suits  for  assaults.79 

In  fact  it  is  obvious  that  originally  the  admiralty  had 
jurisdiction,  not  over  torts  alone,  but  over  contracts  made 
out  of  the  realm  (including  the  space  between  high  and 
low  water  mark  when  the  tide  is  in),  for  the  reason,  as  ex- 
pressed by  Littleton,  "Que  chose  fait  hors  del  Royalme 
n'aient  poet  estre  trie  diens  le  Royalme  per  le  secrement  de 
12" — that  things  done  out  of  the  realm  may  not  be  tried 
within  the  realm  by  the  oath  of  twelve  men ;  in  other 
words,  by  a  jury  of  the  vicinage.80 

And  so  the  reductio  ad  absurdum  of  the  common-law 
warfare  on  the  admiralty  was  the  conclusion  that  in  case 
of  a  murder  committed  between  high  and  low  water  mark 
neither  had  jurisdiction  if  the  party  died  on  shore.81 

And  there  is  abundant  authority  for  the  proposition  that 
admiralty  has  jurisdiction  over  torts  committed  on  naviga- 
ble waters,  regardless  of  the  presence  or  absence  of  a  ship 
in  the  matter.82 

last  reference,  it  is  true,  was  a  suit  against  the  master,  but  if  he  is 
sued  individually  and  not  for  any  act  connected  with  the  manage- 
ment of  his  ship,  what  is  the  difference? 

™1  Select  PI.  Adm.  (Introduction)  lxix,  lxxxiii,  111,  217;  2  Id. 
[Introduction]  xxviii-xxix,  lxxii  (153). 

so  Godolphin,  View  of  the  Admiral  Jurisdiction  (Ed.  16S5)  pp.  92, 
94,  103. 

si  Lacy's  Case,  2  Co.  Rep.  93  ;  76  Eng.  Rep.  616:  also  1  Leon.  270 : 
74  Eng.  Rep.  246.  See,  also,  case  of  the  admiralty,  13  Co.  Rep.  51 ; 
77  Eng.  Rep.  1461.  Sir  Henry  Constable's  Case,  5  Co.  Rep.  107; 
77  Eng.  Rep.  218. 

82  See  the  charge  of  Sir  Leoline  Jenkins  to  his  grand  jury,  2 
Browne  Civil  &  Admiralty  Law  463  et  seq.,  especially  474,  4S3,  and 
xxxxx  484.  See,  also,  many  instances  In  2  Select  PI.  Adm.  such  as 
obstructing  the  admiralty  coroner  (lxxii,  No.  75),  trespass  on  the 
foreshore  "taking  gould  stones  and  sulphur  stones"  (lxxiv,  No.  30), 
concealing  valuables  taken  from  a  corpse  ashore  at  Cuckmere  Haven 
(lxxv,  No.  47),  damage  to  river  wall  at  Blackwall  whereby  plaintiff's 
land  was  flooded  Hxvi,  No.  99),  trespass  to  a  muscle  bed  (lxvii,  No. 
60),  and  taking  a  sturgeon  (lxxii,  No.  118).  S  se,  nlso,  1  Laws  Ad- 
miralty   (Miliar,   London,    171<;i   for   many   Instances   (pp.   113-110), 


§  107)         DOCTRINE   OF   CONTRIBUTORY  NEGLIGENCE  221 


DOCTRINE  OF  CONTRIBUTORY  NEGLIGENCE 

107.  In  awarding  damages  for  personal  injuries  in  admiral- 
ty, the  common-law  doctrine  that  contributory  neg- 
ligence bars  recovery  does  not  apply. 

It  will  be  seen,  in  connection  with  the  law  of  collision, 
that,  where  both  vessels  are  in  fault,  the  damages  are  equal- 
ly divided,  regardless  of  the  degree  of  fault  of  each  ves- 
sel. In  assessing  damages  for  injuries  to  the  person,  the 
courts  do  not  feel  bound,  as  in  collision  cases,  to  divide 
them  equally,  but,  where  the  party  hurt  is  more  negligent 
than  the  vessel,  they  may  award  him  damages.  The  matter 
is  largely  in  the  discretion  of  the  court.83 

such  as  converting  salt  water  to  private  use,  obstructions  to  navi- 
gation, injuries  to  banks,  docks,  or  wharves,  "prejudices  done  to  or 
by  passengers  on  shipboard,"  and  showing  false  lights,  whether  afloat 
or  ashore. 

§  107.  ssDaylesford  (D.  C)  30  Fed.  633;  MAX  MORRIS,  137  U. 
S.  1,  11  Sup.  Ct.  29,  34  L.  Ed.  586 ;  Carter  v.  Brown,  212  Fed.  393, 
129  O.  C.  A.  69. 


222  ACTION   FOR   INJURIES   RESULTING  FATALLY      (Ch.  10 


CHAPTER  X 

OF  THE  RIGHT  OF  ACTION  IN  ADMIRALTY  FOR  INJURIES 
RESULTING  FATALLY 

108.  Survival  of  Action  for  Injuries  Resulting  in  Death — The  Gen- 

eral Common-Law  Doctrine. 

109.  The  Civil-Law  Doctrine. 

110.  The  Continental  Doctrine. 

111.  The  English  Doctrine  as  to  Survival  in  Admiralty. 

112.  The  American   Doctrine  as   to   Survival  in   Admiralty — Inde- 

pendent of  Statute. 

113.  Under  State  Statutes. 

114.  Under  Congressional  Statutes. 

115.  The  Law  Governing. 

116.  Effect  of  Contributory  Negligence. 

117.  Construction  of  Particular  Statutes. 


SURVIVAL  OF  ACTION   FOR  INJURIES  RESULT- 
ING IN   DEATH— COMMON-LAW 
DOCTRINE 

108.  By  the  common  law  there  was  no  right  of  action  for 

injuries  resulting  in  death. 

109.  CIVIL-LAW   DOCTRINE— Neither  was  there  any- 

such  right  by  the  civil  law  in  case  of  the  death  of  a 
freeman. 

110.  CONTINENTAL  DOCTRINE— The  Continental  na- 

tions, however,  recognize  such  a  right,  both  on  land 
and  water,  and  have  recognized  it  for  probably  two 
centuries. 

The  Common-haw  Doctrine 

At  common  law  there  was  no  survival  of  a  right  of  action 
for  injuries  inflicted  by  another  causing  death  ;  the  reasons 
assigned  being  that  such  an  action  was  personal  to  the  party 


§§  108-110)       SURVIVAL  OP  ACTION   FOR   INJURIES  223 

injured,  and  that  the  civil  injury  was  merged  in  the  greater 
injury  to  the  state.1 

As  to  the  action  being  personal  to  the  party  injured,  it 
is  easily  seen  why  such  actions  should  not  survive.  In  such 
cases  the  party  may  not  elect  to  proceed,  and  so  the  avoid- 
ance of  litigation  is  accomplished.  But,  even  as  to  the  in- 
jured party,  this  power  of  election  does  not  exist  when 
death  ensues.  And  the  reason  ignores  the  fact  that  the 
party  killed  is  not  the  only  one  injured.  There  are  many 
cases  where  suit  is  brought,  not  for  a  right  of  action  derived 
from  the  party  injured,  but  for  damages  caused  directly  to 
the  suitor.  As  a  result,  the  common  law  finds  itself  in  the 
absurd  position  of  giving  a  right  of  action  to  the  parent  for 
the  loss  of  the  services  of  his  son  if  some  one  beats  him  so 
severely  as  to  disable  him,  but  not  if  the  beating  is  carried 
so  far  as  to  kill  him.  A  parent  may  sue  at  common  law  for 
loss  of  the  services  of  his  daughter  if  some  libertine  seduces 
her,  but  not  if  some  brute  outrages  and  murders  her.  It 
seems  to  be  one  case  where  the  part  is  greater  than  the 
whole. 

When  aged  and  indigent  parents  are  deprived  by  death 
of  the  son  who  is  supporting  them,  or  a  wife  with  a  family 
of  helpless  children  is  left  to  feed  and  rear  them  unaided 
by  the  strong  arm  which  has  theretofore  done  all  the  labor, 
it  is  a  mockery  to  say  that  only  the  dead  was  the  party  af- 
fected. The  empty  larder  teaches  the  contrary,  and  the 
case  is  not  analagous  to  those  wrongs  like  slander  or  libel, 
which  are,  in  nature,  strictly  personal. 

On  natural  principles  of  equity,  such  wrongs  should  have 
a  remedy. 

The  Civil-Law  Doctrine 

The  doctrine  of  the  civil  law  on  the  subject  is  not  entirely 
clear.    In  Hubgh  v.  New  Orleans  &  C.  R.  Co.,2  the  Supreme 

§§  10S-110.     i  Baker  v.  Bolton,  1  Camp.  493. 
a  6  La.  Ann.  490. 


224  ACTION   FOR  INJURIES   RESULTING  FATALLY      (Ch.  10 

Court  of  Louisiana  decided  that  by  the  civil  law  there  was 
no  right  of  action  for  damages  resulting  in  the  death  of  a 
freeman,  as  the  value  of  a  freeman's  body  could  not  be  esti- 
mated in  damages ;  but  that  there  was  such  a  right  of  action 
in  case  of  a  slave.  In  the  course  of  the  opinion  it  is  also  said 
that  the  well-known  passage  of  Grotius3  was  intended  to 
enunciate  merely  a  duty  of  imperfect  obligation  arising  from 
natural  law,  and  not  any  requirement  of  municipal  law.  On 
the  other  hand,  Judge  Deady,  in  Holmes  v.  Oregon  &  C.  R. 
Co.,4  states  that  the  Roman  law  did  give  such  a  remedy, 
though  he  cites  no  authority  for  the  statement.  It  is  prob- 
able, however,  and  certainly  the  opinion  of  the  leading  com- 
mentators, that  the  provisions  in  the  ancient  civil  law  in 
relation  to  the  killing  of  freemen  were  penal,  rather  than 
civil. 

The  Continental  Doctrine 

However  this  may  be,  the  leading  Continental  nations, 
which  have  drawn  from  the  civil  law  their  principles  of  right 
and  remedy,  have  adopted  in  their  system  of  laws,  a  rem- 
edy for  such  cases. 

The  above-cited  decision  from  Louisiana  states  that  the 
law  of  France  allows  such  a  remedy,  though  it  did  not  feel 
bound  to  adopt  the  French  law  on  the  subject  for  Lou- 
isiana. 

In  Holland  (long  the  maritime  rival  of  England)  the  right 
of  action  is  firmly  established,  and  has  been  for  centuries. 
It  is  an  equitable  development  of  the  penal  provisions  of  the 
civil  law  relating  to  the  death  of  freemen. 

Grotius,  in  his  Introduction  to  the  Jurisprudence  of  Hol- 
land,5 says: 

«  "Homicida  injustus  tenetur  solvere  linpensas,  si  qua?  facta?  sunt 
in  medicos,  et  iis  quos  occisus  alere  ex  officio  solebat,  puta  parentibus, 
uxoribus,  liberis  dare  tantum  quantum  ilia  spes  alimentorum,  ratione 
habita  tetatia  ocrisi,  valebat"    2  Grot,  de  J.  B.  c.  17. 

'  1 1 ».  C.)  5  Fed.  75. 

b  Book  3,  c.  33  (Herbert  Ed.  London,  isr>). 


§§  108-110)       SURVIVAL  OF  ACTIOX   FOR   INJURIES  225 

"Sec.  2.  But  the  slayer  is  properly  bound  to  make  com- 
pensation to  the  widow,  children;  and  others,  if  any  there 
be,  who  were  usually  supported  by  the  labor  of  the  deceased, 
for  losses  and  loss  of  profits  calculated  upon  the  principal 
of  annuity." 

"Sec.  5.  And  it  is  to  be  observed  that  in  the  punishment, 
as  well  as  the  reconciliation,  a  great  distinction  is  made  be- 
tween cases  where  homicide  has  been  effected  by  assassi- 
nation— that  is,  secretly  and  treacherously,  or  where  the 
criminal  was  aware  of  what  he  was  doing — and  cases  where 
the  party  was  slain  unawares ;  or  where  the  homicide  took 
place  in  a  personal  conflict  with  unlawful  or  forbidden,  or 
with  equal  or  unequal,  weapons,  and  which  has  given  oc- 
casion to  the  combat;  or  where,  in  short,  the  homicide  did 
not  occur  from  passion,  but  from  neglect.  But,  as  far  as 
regards  compensation,  these  circumstances  are  not  taken 
into  consideration,  as  it  is  sufficient  for  that  purpose  that  it 
has  been  occasioned  by  the  fault  of  some  one,  in  which  is 
included  the  neglect  or  unskillfulness  of  a  physician  or  mid- 
wife, and  the  neglect  or  ignorance  of  a  waggoner  or  skipper, 
or  the  incapacity  of  either  in  managing  a  ship  or  horses." 

Vinnius,  in  his  Commentaries  on  the  Institutes  (3d  Ed., 
Amsterdam,  1659),  in  discussing  the  title  of  the  Aquilian 
law,  says  that  there  was  no  right  of  action  under  that  law  for 
the  death  of  a  freeman ;  but  that  there  was  under  the  Cor- 
nelian law  if  the  killing  was  intentional  (dolo),  but,  if  neg- 
ligent (culpa),  a  fine  was  imposed;  but  that,  if  there  is  a 
question  of  civil  remedy,  the  unjust  slayer  is  required  to  pay 
the  funeral  and  medical  expenses,  and  such  a  sum  to  those 
whom  the  deceased  was  bound  to  support — as,  for  instance, 
children,  wife,  and  parents — as  their  expectation  of  sup- 
port was  worth,  considering  his  age. 

J.  Voet,  in  his  Commentary  on  the  Pandects,  after  refer- 
ring to  various  texts  of  the  Roman  law  on  the  subject  of 
rights  of  action  for  personal  injuries,  states  that  in  modern 
times  this  right  has  been  extended  to  the  case  of  injuries 
Hugues.Adm.  (2d  Ed.) — 15 


226  ACTION   FOR   INJURIES    RESULTING  FATALLY      (Ch.  10 

resulting  in  death,  and  gives  a  right  of  action  to  the  chil- 
dren or  other  relations,  in  which  each  should  sue  for  the 
loss  personally  caused  to  him,  not  for  any  loss  inherited 
from  the  deceased.0 

In  Germany,  also,  the  right  exists.  In  a  decision  of  the 
German  Reichsgericht,  rendered  in  1882, 7  it  was  held  that 
this  right  of  action  existed  in  favor  of  parents  for  the  neg- 
ligent killing  of  a  son.  The  opinion  cites  many  commenta- 
tors, and  traces  the  doctrine  back  for  two  centuries. 

The  law  of  Scotland  also  allows  actions  to  the  wife  or 
family  of  the  deceased  as  a  development  of  the  unwritten 
law  of  that  country.8 

As  these  countries  administer  the  law  substantially  the 
same  in  all  their  courts,  and  do  not  have  common-law  courts 
with  one  system  and  other  courts  with  another  system,  the 
doctrine  with  them  applies  on  land  and  sea  alike. 

This  prevalence  of  the  doctrine  among  the  leading  Conti- 
nental nations  would  seem  to  settle  that  it  is  at  least  suf- 
ficiently recognized  to  entitle  it,  in  so  far  as  it  may  be  mari- 
time in  nature,  to  be  considered  a  part  of  the  general  body 
of  maritime  law  as  administered  by  maritime  nations.  In 
other  words,  any  other  nation  that  may  choose  to  adopt  it 
into  its  jurisprudence  is  not  making  something  maritime 

«  "Nee  dubiuni,  quin  ex  usu  hodierno,  la  this  ilia  agendi  potestas 
extensa  sit ;  in  quantum  ob  hominem  liberum  culpa  occisuni  uxori  et 
Uberis  actio  datur  in  id,  quod  religioni  judicantis  jequuni  videbitur, 
habita  ratione  victus,  quern  occisus  uxori  libevisque  suis  aut  aliis  pro- 
pinquis  ex  operis  potuisset  ac  solitus  esset  subministrare.  *  *  * 
Qua  in  re  si  concurrat  forte  uxor,  parentes,  liberi,  alter  alter!  pnefer- 
endus  noil  est;  sed  niagis  unicuique  in  id.  quanti  sna  interesse  docet, 
actio  danda ;  tuin  quia  singuli  non  de  poena,  sed  dainno  sibi  illato  rep- 
arando  eontendunt ;  turn  quia  htec  actio  uxori,  liberis,  similibusque, 
non  qua  oecisi  heredibus  adeoque  jure  hereditario,  sed  (pin  lsesis  ex 
facto  Occident  is  datur;  sic  ut  et  illis  accommodanda  veniat,  qui  de- 
functo  heredes  oss<>  ab  intestato  non  potuerunt,  vel.  oecisi  heredita- 
tem.  ntpote  suspectam  noluerent  adire."     Volume  1  (Ed.  1723')  p.  542. 

i  Entscheidungen  dea  R.  G.  in  Civilsachen,  vol.  7,  p.  139. 

b  Bell,  Comm.  g  2029;    Clarke  v.  Coal  Co.,  [1891]  A.  0.  412. 


§  111)         THE   ENGLISH   DOCTRINE   AS   TO   SURVIVAL  227 

that  was  not  maritime  before,  is  not  extending  the  limits  of 
the  general  maritime  law,  but  is  merely  drawing  from  that 
fountain   something  that  was  there  already. 

I 

THE  ENGLISH   DOCTRINE  AS  TO   SURVIVAL  IN 
ADMIRALTY 

111.  In  England  there  is  no  right  of  action  in  rem  in  ad- 
miralty for  injuries  resulting  in  death. 

The  English  courts  recognized  no  such  right  in  the  ad- 
miralty equally  as  at  law.  Lord  Campbell's  Act9  did  away 
with  this  doctrine  of  the  common  law,  and  gave  a  right  of 
action  to  the  personal  representative  for  the  benefit  of  the 
wife,  husband,  parent,  or  child  for  the  injury  done  to  them, 
not  for  any  injury  to  the  deceased  inherited  by  them.  The 
act  expressly  excepted  Scotland,  for  the  reason,  above  ex- 
plained, that  the  right  already  existed  there. 

It  was  long  a  question  in  England  whether  this  statute 
was  intended  to  apply  to  the  admiralty  courts.  After  much 
fluctuation,  it  was  finally  settled  by  the  House  of  Lords  in 
the  VERA  CRUZ,10  decided  in  1884,  that  the  language  of 
the  English  act  contemplated  only  suits  in  the  common-law 
courts,  as  was  evident  from  the  provisions  in  relation  to 
juries,  and  that  neither  that  act,  nor  the  other  acts  giving 
the  admiralty  courts  jurisdiction  in  case  of  "claims  for  dam- 
age done  by  a  ship,''  gave  the  latter  courts  cognizance  in 
rem  over  death  claims.    This  is  still  the  law  of  England. 

§  111.     9  9  &  10  Vict.  c.  93. 

io  10  App.  Gas.  59.  In  the  Bernina,  L.  R.  12  P.  D.  58,  13  A.  C.  1,  an 
action  in  personam  in  the  Probate,  Divorce,  and  Admiralty  Division 
was  sustained,  but  it  was  on  the  ground  that  such  court  was  a  divi- 
sion of  the  High  Court  of  Justice  under  the  English  Judicature  Act, 
and  not  by  virtue  of  the  jurisdiction  possessed  by  it  as  an  admiralty 
court.  See,  also,  Albert  Dumois,  177  U.  S.  240,  20  Sup.  Ct.  595,  44 
D.  Ed.  751. 


22S  ACTION   FOR  INJURIES   RESULTING  FATALLY      (Ch.  10 


THE  AMERICAN  DOCTRINE  AS  TO  SURVIVAL  IN 
ADMIRALTY— INDEPENDENT   OF 

STATUTE 

ft 
112.  In  America  there  is,  independent  of  statute,  no  right  of 

action  in  the  admiralty  for  death  injuries. 

In  the  United  States  the  decisions  have  been  far  from 
harmonious.  In  our  dual  system  of  laws,  we  must  consider 
the  question  independent  of  state  statute,  and  also  as  affect- 
ed by  such  statutes. 

Some  of  the  District  Judges,  when  the  question  came  be- 
fore them,  decided  that  the  common-law  doctrine  did  not 
govern  the  admiralty  courts ;  that  it  was  not  consonant 
with  natural  justice ;  and  that  the  widow  and  children  had 
a  natural  right  to  damages.  Hence  they  sustained  suits  by 
the  widow  and  children,  not  by  the  administrator,  even  in 
states  that  had   enacted  Lord  Campbell's  Act.1'1 

The  question  first  came  before  the  Supreme  Court  in  Ex 
parte  Gordon,12  decided  in  1881.  A  libel  had  been  filed  in 
a  District  Court  against  a  vessel  for  a  death  caused  by  a 
marine  collision.  A  writ  of  prohibition  was  asked  to  re- 
strain the  court  from  entertaining  the  case  as  one  beyond  its 
cognizance.  The  Supreme  Court  decided  that,  as  collision 
was  a  marine  tort,  the  District  Court  had  jurisdiction  over 
the  subject-matter;  that  whether  to  consider  this  special 
claim  was  a  question  of  the  exercise,  not  of  the  existence, 
of  jurisdiction;  that  the  lower  court  could  pass  upon  such 
a  question  ;  and  that  the  proper  way  to  raise  it  was  by 
appeal.    This,  therefore,  settled  nothing. 

One  branch  of  the  question  was  presented  squarely  inthe 
HARRISBURG,13  decided  in  1886.     That  was  a  collision 

§  112.     11  Sea    Gull,   Chase,  145,   Fed.   Cas.  No.   11V37S ;    Highland 
Light,  Chase,  150,  Fed.  ('as.  No.  (1,477. 
12  104  r.  s.  515,  26  L.  Ed-  81  I. 
is  11!)  U.  S.  199,  7  Sup.  (  t.  I  10,  30  L.  Ed.  358. 


§  112)  AMERICAN    DOCTRINE    AS    TO   SURVIVAL  229 

between  the  schooner  Tilton  and  the  steamer  Harrisburg,  a 
Pennsylvania  steamer,  in  Massachusetts  waters,  in  which 
the  mate  of  the  Tilton,  a  citizen  of  Delaware,  was  killed. 
His  widow  and  child  libeled  the  steamer  in  the  United  States 
District  Court  at  Philadelphia.  Both  Massachusetts  and 
Pennsylvania  had  statutes  giving  suits  to  the  administrator, 
but  these  were  held  inapplicable,  as  the  libel  had  not  been 
brought  within  the  time  required  by  those  statutes. 

Chief  Justice  Waite  reviewed  the  American  decisions,  and 
held  that  the  rule  of  the  common  law  against  the  right  was 
well  established,  and  that  there  was  nothing  to  show  that 
the  rule  of  the  admiralty  law  was  different ;  and  he  held 
that,  independent  of  statute,  the  right  of  action  did  not 
exist,  reserving  the  question  whether  a  statute  could  give  it. 

This  and  the  subsequent  case  of  the  Alaska  14  settle  that 
the  right  of  action  does  not  exist  independent  of  statute. 

Then  came  the  CORSAIR,1'3  decided  in  1892.  It  was  a 
libel  in  rem  against  a  Louisiana  steamer  by  the  parents  of  a 
passenger  killed  by  the  negligence  of  the  steamer  in  Louisi- 
ana waters.  The  claim  was  based  upon  the  sections  of  the 
Louisiana  Code  providing  for  the  bringing  of  actions  for  in- 
juries resulting  in  death.  The  court  held  that  the  statute 
was  evidently  not  intended  to  give  a  remedy  in  rem,  and 
that,  therefore,  the  court  had  no  jurisdiction  of  the  case. 
The  opinion,  however,  seems  to  consider  that  an  action  in 
personam  could  have  been  sustained,  though  this  was  not 
necessary  to  the  decision. 

In  the  Hamilton  1G  the  Supreme  Court  entertained  juris- 
diction of  claims  for  loss  of  life  filed  in  a  limited  liability  pro- 
ceeding, and  intimated  again  that  a  proceeding  in  personam 
could  be  resorted  to,  though  it  was  not  necessary  to  the 
decision.  As  a  limited  liability  proceeding  stops  any  other, 
whether  in  a  state  or  federal  court,  and  compels  all  cred- 
it 130  U.  S.  201,  9  Sup.  Ct.  461,  32  L.  Ed.  923. 

is  145  U.  S.  335.  12  Sup.  Ct.  949.  36  L.  Ed.  727. 

16  207  U.  S.  39S,  2S  Sup.  Ct.  133,  52  L.  Ed.  2G4. 


230  ACTION   FOR   INJURIES   RESULTING   FATALLY      (Ch.  10 

itors,  whether  lien  creditors  or  not,  to  come  in,  this  settles 
nothing  as  to  the  power  to  establish  such  a  right  of  action 
in  admiralty  by  statute. 

Hence  the  question  must  next  be  considered,  first,  in  ref- 
erence to  state  power  of  legislation ;  and,  second,  in  refer- 
ence  to   congressional   power  of   legislation. 

SAME— UNDER  STATE  STATUTES 

113.  A  state  statute  may  give  a  remedy  for  death  injuries, 
enforceable  by  proceedings  in  rem  or  in  personam 
in  the  admiralty  courts,  or  by  ordinary  suit  in  the 
common-law  courts. 

The  mere  fact  that  a  state  statute  may  affect  a  ship  or 
subjects  over  which  admiralty  has  jurisdiction  does  not  in- 
validate it.  There  are  many  cases  where  there  are  concur- 
rent remedies  in  the  state  and  admiralty  courts.  Hence 
there  can  be  no  question  of  the  right  of  a  state  to  give  the 
remedy  by  common-law  action,  even  for  a  cause  of  action 
maritime  by  nature.  In  American  S.  B.  Co.  v.  Chase,17 
decided  in  1872,  which  was  a  suit  at  common  law  for  a  death 
in  the  waters  of  Rhode  Island  caused  by  a  marine  collision, 
the  Rhode  Island  statute  giving  the  right  of  action  at  com- 
mon law  was  held  valid,  notwithstanding  the  point  made 
by  defense  that  the  cause  of  action  was  maritime  by  na- 
ture, and  that  the  statute  was  an  infringement  of  the  ex- 
clusive admiralty  jurisdiction  of  the  federal  courts.  The 
court  forbore  to  decide  whether  it  was  maritime  or  not. 
but  held  that  the  state  could  authorize  a  common-law  action 
in  either  case. 

In  Sherlock  v.  Ailing,1'8  decided  in  1876,  an  Indiana  stat- 
ute to  the  same  effect  was  attacked  on  another  ground.  It 
was  claimed  to  violate  the  commerce  clause  of  the  federal 

§  113.     "  16  Wall.  H22,  21  L.  Ed.  309. 

'-  ;•::  r.  s.  <>t>.  -j::  l.  i-m.  sio. 


§  113)  AMERICAN   DOCTRINE   AS   TO   SURVIVAL  231 

Constitution,  as  imposing  a  new  burden  on  commerce.  But 
the  court  held  that  it  affected  commerce  only  indirectly, 
and  that  in  such  matters  the  states  could  legislate  as  long  as 
Congress  failed  to  legislate  on  the  subject. 

Hence,  as  far  as  this  special  subject  is  concerned,  the  pow- 
er of  a  state  to  legislate,  in  the  absence  of  legislation  by  Con- 
gress, is  clear,  subject  to  certain  restrictions. 

This  is,  subject  to  the  qualification,  explained  in  a  former 
connection,19  that  a  state  cannot  give  to  its  courts  an  action 
in  rem  pure  and  simple  to  enforce  a  maritime  cause  of  ac- 
tion. 

The  power  of  a  state  to  legislate  in  matters  of  admiralty 
cognizance  has  been  frequently  considered.  In  Ex  parte 
McNiel,20  the  court  says  that,  though  a  state  statute  cannot 
confer  jurisdiction  on  a  federal  court,  it  may  give  a  sub- 
stantial right,  which  is  enforceable  in  the  proper  federal 
court,  Avhether  equity,  admiralty,  or  common  law,  accord- 
ing to  the  character  of  the  right  given.  In  other  connec- 
tions the  court  has  decided  that,  if  the  subject-matter  is 
maritime  a  state  statute  may  annex  a  right  in  rem,  enforce- 
able in  the  admiralty  court.  It  may  give  its  courts  juris- 
diction even  of  admiralty  matters,  provided  it  does  not  give 
them  an  admiralty  procedure  in  rem.  Hence  a  state  stat- 
ute giving  a  right  of  action  in  rem  for  supplies  and  repairs 
on  domestic  vessels  is  valid  as  long  as  it  leaves  the  power  of 
enforcing  the  same  by  pure  proceedings  in  rem  to  the  fed- 
eral courts.21 

But  a  state  statute  giving  a  right  of  action  in  rem  for 
building  a  ship  does  not  confer  such  a  power  of  enforce- 
ment on  the  federal  courts,  as  such  a  transaction  is  not 
maritime  by  nature,  and  the  states  cannot  change  the  na- 
ture of  an  action  from  nonmaritime  to  maritime.22 

i9  Ante,  pp.  29,  110. 

20  13  Wall.  236,  20  L.  Ed.  624. 

2i  Glide,  1G7  U.  S.  606,  17  Sup.  Ct.  930,  42  L.  Ed.  296. 

22  Roach  v.  Chapman,  22  How.  129,  16  L.  Ed.  291. 


232  ACTION   FOR   INJURIES   RESULTING  FATALLY      (Ch.  10 

For  the  very  reason  that  it  is  not  maritime  they  can  give 
a  remedy  in  rem  to  their  own  courts  to  enforce  a  ship- 
building contract,  as  the  power  of  the  states  over  matters 
not  maritime  is  not  restricted  by  the  constitutional  pro- 
visions giving  the  federal  courts  exclusive  cognizance  of 
cases  of  admiralty  and  maritime  jurisdiction.23 

A  further  limit  on  the  state  power  of  legislation  over  ad- 
miralty subjects  has  been  added  by  recent  decisions  of  the 
Supreme  Court.  Heretofore  it  has  been  the  usual,  if  not 
universal,  understanding  as  to  the  Supreme  Court  decisions 
that,  if  a  state  statute  creates  a  right  of  action  in  connection 
with  subjects  maritime  by  nature,  an  admiralty  court  would 
recognize  it  and  enforce  it  by  its  own  peculiar  procedure, 
and  that,  if  the  subject  is  maritime  by  nature,  the  limit  as 
to  state  legislation  was  simply  on  its  power  to  interfere  with 
the  exclusive  jurisdiction  of  an  admiralty  court  in  rem. 

But  in  Southern  Pacific  Co.  v.  Jensen  24  the  court  went 
far  beyond  this.  It  held  that  a  state  law  could  not  "work 
material  prejudice  to  the  characteristic  features  of  the  gen- 
eral maritime  law,  or  interfere  with  the  proper  harmony 
and  uniformity  of  that  law  in  its  international  and  inter- 
state relations,"  and  it  held  that  a  common-law  court  in  the 
trial  of  a  case  was  required  to  apply  the  doctrines  of  ad- 
miralty law,  if  the  case  was  of  a  maritime  nature,  regard- 
less of  a  state  statute  purporting  to  affect  it. 

It  repeated  the  ruling  in  two  later  cases.25  As  there  was 
in  ordinary  cases  no  established  admiralty  rule  as  to  inju- 
ries resulting  in  death,  this  additional  qualification  would 
not  affect  the  state  power  of  legislation  over  such  cases,  as 

as  Edwards  v.  Elliott,  21  Wall.  532,  22  L.  Ed.  187;  North  Pacific 
S.  S.  Co.  v.  Hall  Bros.  Marine  Ky.  &  Shipbuilding  Co.,  249  U.  S.  110, 
39  Sup.  Ct.  221,  63  L.  Ed.  510. 

24  244  U.  S.  205,  37  Sup.  Ct.  524,  61  L.  Ed.  1086,  L.  R.  A.  L918C, 
151,  Ann.   Cas.    lOITE,  000. 

-••  Chelentls  v.  Duckenbach  S.  S.  Co.,  247  U.  S.  372,  38  Sup.  Ct. 
501,  02  L.  Ed.  1171:  Union  Fish  Co.  v.  Erickson,  248  V.  S.  308,  39 
Sup.  Ct.  112,  03  L.  Ed.  261. 


§  113)  AMERICAN   DOCTRINE   AS    TO    SURVIVAL  233 

its  effect  would  be  rather  to  supplement  than  to  "work  ma- 
terial prejudice." 

But  there  is  one  class  of  cases  in  which  its  effect  would 
be  far-reaching;  that  is,  in  case  of  the  representatives  of 
a  seaman  suing  for  a  death  caused  by  negligence  of  the  ship- 
owner, the  basis  of  the  suit  being  a  state  statute  giving  such 
a  right  of  action. 

Under  the  old  admiralty  authorities,  the  only  responsibil- 
ity of  a  shipowner  to  a  seaman,  in  the  absence  of  personal 
negligence,  is  for  maintenance  and  cure,  and  does  not  extend 
beyond  the  seaman's  life.  Hence  it  ought  to  follow  as  a 
corollary  from  these  decisions  that  a  state  can  not  create 
a  right  of  action  for  negligent  injuries  resulting  in  the  death 
of  a  seaman.  Prior  to  those  decisions  such  suits  were  com- 
mon.26 

But,  with  these  qualifications,  if  the  subject-matter  dis- 
cussed in  this  chapter  is  by  nature  maritime,  the  power  of 
a  state  to  give  an  action  enforceable  in  an  admiralty  court, 
in  the  absence  of  congressional  legislation,  seems  to  fol- 
low. 

Restrictions  of  State  Statute  Binding 

As  the  right  to  sue  depends  on  the  state  statute,  it  follows 
that  the  state,  in  giving  the  right,  may  name  the  conditions 
on  which  it  is  given.  Hence  the  restriction  of  the  right  to 
sue  to  one  year,  contained  in  Lord  Campbell's  Act  and  em- 
bodied in  nearly  all  the  state  statutes  based  upon  it,  is  bind- 
ing on  suits  in  the  admiralty  court.  This  is  not  a  statute 
of  limitations,  but  a  condition  on  which  the  right  is  given, 
and  performance  must  be  shown  by  the  plaintiff  as  part  of 
his  case.27 

2  6  Transfer  No.  12,  221  Fed.  409,  137  C.  C.  A.  207. 

27  Harrisburg,  110  U.  S.  199,  7  Sup.  Ct.  140,  30  L.  Ed.  35S ;  Stem 
v.  La  Compagnie  Generate  Transatlantique  (D.  C.)  110  Fed.  996; 
International  Nav.  Co.  v.  Lindstrom,  123  Fed.  475,  GO  C.  C.  A.  649. 
Unless  the  California  statute  differs  from  the  usual  form  of  these 
statutes,  Western  Fuel  Co.  v.  Garcia,  255  Fed.  817,  167  C.  C.  A.  145, 


234  ACTION   FOR   INJURIES    RESULTING   FATALLY      (Ch.  10 

In  this  connection  it  is  material  to  consider  how  far  the 
workmen's  compensation  laws  enacted  in  many  states  af- 
fect the  right  to  sue  in  the  admiralty  for  damages  resulting 
in  death. 

This  is  largely  a  question  of  construing  the  state  legisla- 
tion on  the  subject.  The  usual  type  of  compensation  law 
restricts  those  who  come  under  its  terms  to  the  remedies 
provided  by  the  law  itself.  The  right  of  action  for  damages 
resulting  in  the  death  of  an  employe  is  to  that  extent  abol- 
ished. 

Logically  it  should  follow  that,  where  the  right  of  action 
depends  on  a  state  statute,  it  would  fall  in  the  admiralty 
court  wherever  it  would  fall  in  the  state  court.  The  power 
which  makes  can  unmake,  in  whole  or  in  part.  It  can  re- 
peal such  a  right  entirely,  or  modify  it  as  seems  best. 

So  far  this  question  has  not  been  directly  presented,  and 
it  remains  to  be  seen  whether  the  judges  will  follow  their 
heads  or  their  hearts.28 

Fatal  Injury  on  Water — Death  Ashore 

In  discussing  the  bounds  of  admiralty  jurisdiction  in  tort, 
it  has  been  seen  that  where  the  cause  of  action  is  consum- 
mate on  the  water,  admiralty  has  jurisdiction,  though  addi- 

deciding  the  contrary,  cannot  be  sustained.  It  is  true,  as  the  court 
says,  that  the  recognized  principles  of  the  maritime  law  are  un- 
affected by  local  legislation,  at  least  since  the  recent  decisions  of 
the  Supreme  Court.  But  the  right  to  sue  for  damages  resulting  in 
death  is  not  "a  recognized  principle  of  the  maritime  law,"  but  a  new 
right  depending  so  far  on  state  statutes  and  subject  to  the  conditions 
of  those  statutes.  Besides,  there  are  many  instances  where  the 
"recognized  principles  of  maritime  law"  have  been  affected  by  local 
legislation,  such  as  pilotage,  materialmen's  liens,  local  regulations 
of  navigation,  and  a  number  of  others. 

28Bjolstad  v.  Pacific  Coast  S.  S.  Co.  (D.  C.)  244  Fed.  Got,  is  some- 
what analogous.  There  the  Workman's  Compensation  Act  of  New 
was  held  to  modify  the  New  Jersey  death  statute  as  to  one 
class  of  employes.  Judge  Dooling  aptly  said:  "If  one  has  to  relj  on 
a  state  law  to  support  a  claimed  right,  he  must  take  the  law  as  he 
finds  it,   hardships   and   all."     But   on    May   27.   1020,   the  Supreme 


§  113)  AMERICAN   DOCTRINE   AS   TO   SURVIVAL  235 

tional  injuries  immediately  following  on  land  may  aggra- 
vate the  damages,  and  that  on  the  other  hand,  where  the 
cause  of  action  is  consummate  only  on  land,  admiralty  has 
no  jurisdiction,  although  the  injury  originated  on  water.29 

The  application  of  this  doctrine  to  the  case  of  a  person 
injured  fatally  on  a  ship,  but  not  dying  till  after  he  has  been 
carried  ashore,  depends — or  ought  to  depend — on  the  char- 
acter of  the  state  statute  giving  the  right. 

It  is  well  known  that  state  statutes  giving  this  right  of 
action  fall  under  two  classes.  One  class  recognizes  the 
right  of  the  deceased  to  sue  for  the  injury  inflicted,  and 
provides  that  such  right  of  action,  vesting  independent  of 
statute  in  the  deceased,  shall  survive,  thus  simply  abol- 
ishing the  common-law  rule  that  a  personal  right  of  action 
dies  with  the  person.  The  Massachusetts  and  Louisiana 
statutes  may  be  taken  as  types  of  this  class,  and  these  are 
called  "survival  acts." 

Another  type  gives  an  entirely  new  right  of  action  to  the 
parties  injured  by  the  death,  such  as  dependents,  for  the 
loss  to  them  by  reason  of  the  death,  independent  of  any 
right  of  action  to  the  deceased.  Lord  Campbell's  Act  in 
England,  which  was  the  prototype  of  these  statutes,  and  the 
Virginia  statute,  are  good  illustrations  of  this  type.  These 
are  usually  designated  as  "death  acts." 

It  is  obvious  that  under  a  survival  act  the  right  of  action 
is  consummate  when  the  fatal  injury  is  inflicted,  and  that 
the  subsequent  suffering  and  death  are  only  cumulative. 

It  is  equally  obvious  that  under  a  death  act  the  right  of 
action  is  not  consummate  till  death  occurs.30 

Court  decided  such  acts  invalid  as  affecting  admiralty.  Knicker- 
bocker Ice  Co.  v.  Stewart,  252  U.  S.  ,  40  Sup.  Ct.  43S,  til  L.  Ed. . 

2  6  Ante,  p.  199. 

so  in  Carolina.  C.  &  O.  R.  R.  v.  Shewaller,  128  Tenn.  363,  161  S. 
W.  1136,  Ann.  Cas.  1915C,  605,  L.  R.  A.  1916C,  964  (affirmed  without 
opinion  Shewalter  v.  Carolina,  C.  &  O.  Ry.,  239  U.  S.  630,  36  Sup.  Ct. 
166,  60  L.  Ed.  476).  is  an  admirable  discussion  of  these  two  classes. 
See,  a?so,  Michigan  Cent.  R.  Co.  v.  Vreeland,  227  U.  S.  59,  33  Sup. 
Ct.  193,  57  L.  Ed.  417,  Ann.  Cas.  1914C,  176. 


236  ACTION    FOR   INJURIES    RESULTING  FATALLY      (Ch.  10 

Hence,  in  a  case  arising  under  a  survival  act,  admiralty 
ought  to  have  jurisdiction,  though  the  death  occurred  on 
land. 

And  in  a  case  arising  under  a  death  act,  admiralty  ought 
not  to  have  jurisdiction,  where  the  death  occurred  on  land. 

Accordingly,  in  Ryley  v.  Philadelphia  &  R.  R.  Co.,31 
Judge  Adams  held  that  admiralty  had  no  jurisdiction  in  a 
case  turning  on  the  Pennsylvania  statute  (a  death  statute) 
where  the  injured  party  died  on  shore. 

And  in  Hamburg-Amerikanische  Packetfahrt  Aktien  Ge- 
sellschaft  v.  Gye,32  the  Circuit  Court  of  Appeals  for  the 
Fifth  Circuit  held,  in  a  case  arising  under  the  Louisiana 
statute  (a  survival  statute),  that  there  was  jurisdiction. 

This  case  was  followed  in  the  Anglo-Patagonian  33  by  the 
Circuit  Court  of  Appeals  for  the  Fourth  Circuit,  in  a  case 
arising  under  the  Virginia  statute  (a  death  statute),  over- 
looking the  radical  difference  between  the  Louisiana  and 
Virginia  statutes. 

SAME— UNDER    CONGRESSIONAL   STATUTES 

114.  Congress,  under  its  general  power  to  regulate  mari- 
time subjects,  can  give  a  right  of  action  in  admiral- 
ty for  death  injuries ;  and  a  congressional  statute 
would  supersede  any  state  statutes  in  so  far  as  they 
conflict  with  it. 

It  is  now  necessary  to  consider  how  far  Congress  may 
legislate  on  the  subject. 

si  (D.   C.)  173   Fed.  839. 

32  207  Fed.  247,  124  C.  C.  A.  517.  Thai  the  Louisiana  act  is  a 
survival  act,  see  Carolina  C.  &  O.  It.  R.  v.  Shewalter,  128  Tenn.  303, 
161  S.  W.  1136,  Ann.  Cas.  1915C,  605,  L.  R.  A.  1916C,  964,  affirmed 
Shewalter  v.  Carolina,  C.  &  0.  Ry.,  239  D.  S.  630,  36  Sup.  CI.  L66, 
60  L.  Ed.  47(i.  ante,  note  30,  and  the  Corsair.  145  U.  S.  3.':.",  12  Sup. 
Ct.  949,  36  L.  Ed.  727. 

sa  235  Fed.  92,  148  C.  C.  A.  586. 


§  114)  AMERICAN   DOCTRINE   AS   TO   SURVIVAL  237 

The  federal  courts  as  a  class  derive  their  admiralty  ju- 
risdiction direct  from  the  Constitution,  and  not  from  con- 
gressional statutes.  How  far  may  federal  statutes  affect  the 
admiralty  jurisdiction?  There  are  many  statutes  which  do 
affect  it — like  the  statutes  regulating  the  rules  of  the  road 
at  sea,  requiring  inspection  of  steamers,  regulating  the 
rights  of  merchant  seamen,  etc.  It  was  at  one  time  sup- 
posed that  similar  legislation  rested  upon  the  power  to  regu- 
late commerce,  which  reasoning,  if  sound,  would  have  de- 
feated the  power  of  regulating  vessels  engaged  solely  in  in- 
ternal commerce.  And  so  it  was  held  as  far  back  as  the 
GENESEE  CHIEF,34  decided  in  1851,  that  Congress  de- 
rives some  powers  of  legislation  from  the  admiralty  clause 
of  the  Constitution,  and  is  not  limited  to  the  commerce 
clause.  This  has  been  reiterated  in  many  later  cases,  nota- 
bly in  EX  PARTE  GARNETT,35  decided  in  1891. 

This  power  of  Congress  to  regulate  admiralty  jurisdiction 
must  now  be  defined  more  accurately.  As  the  grant  is  by 
the  Constitution  itself,  Congress  cannot  change  the  general 
limits  or  bounds  of  the  admiralty.  But  within  those  bounds, 
as  understood  by  the  common  consent  of  enlightened  mari- 
time nations,  it  may  regulate  procedure,  and  even  rights. 
It  may  adopt  into  our  law  doctrines  of  marine  law  found  in 
other  maritime  codes,  though  our  admiralty  courts  had 
never  before  administered  such  a  doctrine.  It  cannot  make 
that  marine  which  is  not  marine  by  nature,  but,  if  it  is  ma- 
rine by  nature,  and  so  recognized  in  maritime  circles,  Con- 
gress may  give  it  a  place  in  our  admiralty  law  which  it  had 
never  had  before.  To  illustrate,  Congress  could  pass  a 
statute  regulating  the  manner  in  which  approaching  vessels 
should  act  to  prevent  collision,  though  both  were  enrolled 
in  Virginia,  and  never  left  the  boundaries  of  Virginia;  but 
Congress  could  hardly  pass  a  statute  regulating  the  pre- 


§  114.     3  4  12  how.  443,  13  L.  Ed.  1058. 

ss  141  U.  S.  1,  11  Sup.  Ct.  840,  35  L.  Ed.  631. 


238  ACTION    FOR    INJURIES    RESULTING    FATALLY       (Ch.  10 

cautions  which  approaching  railroad  trains  "should  take  to 
avoid  collision,  and  relegate  their  enforcement  to  the  ad- 
miralty courts. 

"  'It  is  true,  we  have  held  that  the  boundaries  and  limits 
of  the  admiralty  and  maritime  jurisdiction  are  matters  of 
judicial  cognizance,  and  cannot  be  affected  or  controlled  by 
legislation,  whether  state  or  national.'  Chief  Justice  Taney 
in  the  St.  Lawrence,  1  Black,  522,  526,  527  [17  L.  Ed.  180]  ; 
The  Lottawanna,  21  Wall.  558,  575,  576  [22  L.  Ed.  654]. 
But  within  these  boundaries  and  limits  the  law  itself  is  that 
which  has  always  been  received  as  maritime  law  in  this 
country,  with  such  amendments  and  modifications  as  Con- 
gress may  from  time  to  time  have  adopted."  36 

This  subject  has  been  considered  by  the  Supreme  Court 
in  connection  with  the  statute  limiting  the  liability  of  a  ves- 
sel owner  for  torts  of  his  ship  or  crew  to  the  value  of  the 
-hip.  This  act  was  passed  on  March  3,  1851,  9  Stat.  635 
(U.  S.  Comp.  St.  §§  8020-8027).  In  Norwich  &  N.  Y. 
Transp.  Co.  v.  Wright,37  it  is  said  to  have  originated  in  the 
maritime  law  of  modern  Europe.  In  the  SCOTLAND,38 
ihe  court,  repeating  what  it  had  said  in  the  LOTTA- 
WANNA,39 says  that  the  foreign  maritime  codes  and  com- 
pilations were  operative  in  any  country  only  so  far  as  that 
country  chose  to  adopt  them,  and  not  as  authority  per  se  ; 
but  that  Congress  could  adopt  such  a  principle  into  our  law 
from  the  general  body  of  maritime  law.  In  EX  PARTE 
PHENIX  INS.  CO.,40  an  application  was  made  for  the 
benefit  of  this  limitation  against  a  fire  on  land  started  by 
a  passing  steamer.  The  court  held,  however,  that  the  lim- 
itation was  only  intended   to   protect   against  such  causes 

■■i  6  Butler  v.  Boston  &  S.  S.  S.  Co.,  130  U.  S.  527,  9  Sup.  Ct.  G12,  32 
\,  Ed.  1017. 
a  7  13  Wall.  104,  20  L.  Ed.  585. 
-  L05  0.  S.  24,  2G  L.  Ed.  1001. 
•-•»21  Wall.  558,  22  L.  Ed.  654. 
40  118  r.  S.  610,  7  sup.  Ct.  25,  30  L.  Ed.  274. 


§  114)  AMERICAN   DOCTRINE   AS   TO   SURVIVAL  239 

of  action  as  the  district  court  could  have  heard  on  libel  in 
rem  or  in  personam,  and  a  loss  consummate  on  land  was 
not  one  of  these.  In  other  words,  this  case  settled  that  the 
limitation  could  only  be  pleaded  against  such  causes  of  ac- 
tion as  were  in  their  nature  maritime,  no  matter  in  what 
forum,  state  or  federal,  they  were  asserted. 

Then  came  BUTLER  v.  BOSTON  &  S.  S.  S.  CO." 
There  the  act  was  invoked  as  a  protection  against  a  suit 
on  account  of  the  death  of  a  passenger  on  Massachusetts  wa- 
ters, brought  in  a  Massachusetts  court  under  a  Massachu- 
setts statute.  If  this  cause  of  action  was  not  maritime  by 
nature,  and  the  Massachusetts  act  could  not  have  given  a 
remedy  enforceable  in  the  admiralty,  it  would  have  been 
the  duty  of  the  court,  under  the  principles  of  EX  PARTE 
PHENIX  INS.  CO.,  to  have  refused  the  benefit  of  the  lim- 
ited liability  act  against  the  suit  as  one  of  which  a  District 
Court  would  not  have  had  original  jurisdiction  in  admiralty. 
But  the  court  decided  that  Congress  had  power  to  adopt  the 
act  from  the  Continental  maritime  codes,  and  to  extend  its 
protection  to  death  cases,  and  that  this  power  came  from 
the  admiralty  and  maritime  clause  of  the  Constitution,  not 
from  the  commerce  clause.42 

This  would  settle  the  question  that  such  a  cause  of  action 
is  maritime  by  nature,  if  it  were  not  clear  enough  already. 
In  the  first  part  of  this  chapter  it  has  been  shown  that  the 
leading  Continental  maritime  nations  recognized  such  a 
right  of  action.  If  Congress  can  ingraft  on  our  maritime 
law  their  limited  liability  act,  it  can,  on  the  same  principle, 
borrow  their  action  for  death  injuries. 

This  reasoning  is  not  affected  by  the  later  case  of  Rich- 
ardson v.  Harmon/3  which  held  that  nonmaritime  causes  of 


4i  130  U.  S.  527,  9  Sup.  Ct  612,  32  L.  Ed.  1017. 

42  See,  also,  Albert  Duiuois,  177  U.  S.  240,  20  Sup.  Ct.  595,  44  L. 
Ed.  751. 

43  222  U.  S.  96,  32  Sup.  Ct.  27,  56  L.  Ed.  110. 


240  ACTION   FOR   INJURIES    RESULTING  FATALLY      (Ch.  10 

action  could  also  be  proved  in  a  limited  liability  proceeding. 
It  turned  not  upon  the  original  limited  liability  act  con- 
strued in  ex  parte  Phenix  Ins.  Co.,  but  on  the  amendment  of 
June  26,  1884.44 

If  this  reasoning  and  the  above  authorities  establish  that 
such  a  cause  of  action  is  maritime,  two  results  follow: 

(1)  A  state  statute  can  be  made  to  regulate  the  right, 
and  can  give  it  in  personam  or  in  rem,  enforceable  in  the 
admiralty,  or  by  an  ordinary  personal  action  in  its  own 
courts. 

(2)  An  act  of  Congress  may  also  regulate  the  subject, 
and  in  such  case  it  would  supersede  the  state  statute,  at  least 
so  far  as  foreign  vessels  are  concerned,  or  as  far  as  it  would 
regulate  the  remedy  in  admiralty.* 

44  23  Stat.  57  (U.  S.  Comp.  St.  §  S028) ;    Appendix,  post,  p.  497. 
*  When  this  work  was  nearly  through  the  press,  Congress  passed 
the  following: 

[Public— No.  165— 66th  Congress.] 

[S.  2085.] 
An  Act  Relating  to  the  maintenance  of  actions  for  death  on  the  high 
seas  and  other  navigable  waters. 
Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the 
United  States  of  America  in  Congress  assembled,  That  whenever  the 
death  of  a  person  shall  be  caused  by  wrongful  act,  neglect,  or  de- 
fault occurring  on  the  high  seas  beyond  a  marine  league  from  the 
shore  of  any  State,  or  the  District  of  Columbia,  or  the  Territories 
or  dependencies  of  the  United  States,  the  personal  representative 
of  the  decedent  may  maintain  a  suit  for  damages  in  the  district 
courts  of  the  United  States,  in  admiralty,  for  the  exclusive  benefit 
of  the  decedent's  wife,  husband,  parent,  child,  or  dependent  relative 

dnsl  the  vessel,  person,  or  corporation  which  would  have  been 
liable  if  death  had  not  ensued. 

See.  2.  That  the  recovery  in  such  suit  shall  be  a  fair  and  just 
compensation  for  the  pecuniary  loss  sustained  by  the  persons  for 
whose  benefit  the  suit  is  broughl  and  shall  be  apportioned  among 
them  by  the  COUrl  III  proportion  to  the  loss  they  may  severally  have 
suffered  by  reason  of  the  death  of  the  person  by  whose  representa- 
tive the  suit  is  brought. 

See.  :;.     That  such  suit  shall  be  begun  within  two  years  from  the 


§  114)  AMERICAN   DOCTRINE   AS   TO   SURVIVAL  241 

In  the  concluding  paragraph  of  the  opinion  in  BUTLER 
v.  BOSTON  &  S.  S.  S.  CO.,  supra,  the  court  reserves  the 
question  whether  a  state  statute  can  have  this  effect.  This 
was  probably  a  mere  cautious  reservation  of  a  question  not 
directly  involved,  but  the  conclusion  would  seem  to  follow 
from  the  above  authorities. 

date  of  such  wrongful  act,  neglect,  or  default,  unless  during  that 
period  there  has  not  been  reasonable  opportunity  for  securing  ju- 
risdiction of  the  vessel,  person,  or  corporation  sought  to  be  charged; 
but  after  the  expiration  of  such  period  of  two  years  the  right  of 
action  hereby  given  shall  not  be  deemed  to  have  lapsed  until  ninety 
days  after  a  reasonable  opportunity  to  secure  jurisdiction  has  of- 
fered. 

Sec.  4.  That  whenever  a  right  of  action  is  granted  by  the  law  of 
any  foreign  State  on  account  of  death  by  wrongful  act,  neglect,  or 
default  occurring  upon  the  high  seas,  such  right  may  be  maintained 
in  an  appropriate  action  in  admiralty  in  the  courts  of  the  United 
States  without  abatement  in  respect  to  the  amount  for  which  re- 
covery is  authorized,  any  statute  of  the  United  States  to  the  con- 
trary notwithstanding. 

.See.  3.  That  it  ;i  person  die  as  the  result  of  such  wrongful  act, 
neglect,  or  default  as  is  mentioned  in  section  1  during  the  pendency 
in  a  court  of  admiralty  of  the  United  States  of  a  suit  to  recover 
damages  for  personal  injuries  in  respect  of  such  act,  neglect,  or  de- 
fault, the  personal  representative  of  the  decedent  may  be  substituted 
as  a  party  and  the  suit  may  proceed  as  a  suit  under  this  Act  for  the 
recovery  of  the  compensation  provided  in  section  2. 

Sec.  6.  That  in  suits  under  this  Act  the  fact  that  the  decedent  has 
been  guilty  of  contributory  negligence  shall  not  bar  recovery,  but 
the  court  shall  take  into  consideration  the  degree  of  negligence 
attributable  to  the  decedent  and  reduce  the  recovery  accordingly. 

Sec.  7.  That  the  provisions  of  any  State  statute  giving  or  regulat- 
ing rights  of  action  or  remedies  for  death  shall  not  be  affected  by 
this  Act.  Nor  shall  this  Act  apply  to  the  Great  Lakes  or  to  any 
waters  within  the  territorial  limits  of  any  State,  or  to  any  navigable 
waters  in  the  Panama  Canal  Zone. 

Sec.  S.  That  this  Act  shall  not  affect  any  pending  suit,  action,  or 
proceeding. 

Approved,  March  P>0,  1920. 
Hughes,Adm.(2d  Ed.) — 16 


242  ACTION   FOR   INJURIES   RESULTING   FATALLY      (Ch.  10 


THE  LAW   GOVERNING 

115.  The  right  of  action  is  governed  by  the  law  of  the  place 
where  it  arose ;  or  by  the  law  of  the  flag  if  it  arose 
on  the  high  seas ;  in  so  far  as  the  relations  of  the 
parties  under  the  flag  are  concerned. 
If  the  death  occurs  from  a  collision  between  two  vessels 
of  different  flags,  there  is  no  right  of  action  by 
those  fatally  injured  on  one  vessel  against  the  oth- 
er vessel,  where  the  collision  occurs  on  the  high 
seas. 

It  is  an  important  question  what  law  governs  in  such 
cases.  A  state  statute  would  regulate  any  such  occurrence 
on  the  waters  within  its  jurisdiction,  and  any  negligent  kill- 
ing on  the  high  seas  of  any  one  on  a  vessel  would  be  gov- 
erned by  the  laws  of  the  vessel's  hailing  port  as  far  as  those 
aboard  are  concerned.4"' 

It  is  a  favorite  principle  of  admiralty  that  its  rights  of 
action  follow  a  ship  around  the  world,  and  may  be  enforced 
in  any  port.  This  is  true  as  to  personal  injuries,  and  in 
such  cases  the  court  enforces  the  law  of  the  place  where 

*5  McDonald  v.  Mallear,  77  N.  Y.  546,  33  Am.  Ron.  064;  Hamil- 
ton, 207  T\  S.  398,  28  Sup.  Ct.  133,  52  L.  Ed.  204  (a  collision  between 
two  ships  of  the  same  flag,  where  the  law  common  to  both  was  ap- 
plied): La  Bourgogne,  210  U.  S.  95,  28  Sup.  Ct.  004.  52  L.  Eld.  973 
(a  French  ship,  where  the  French  law  was  applied  in  favor  of  those 
aboard);  Bjolstad  v.  Pacific  Coast  S.  S.  Co.  (D.  C.)  244  Fed.  634; 
International  Nav.  Co.  v.  Lindstrom,  12:5  Fed.  475,  00  C.  C.  A.  049. 
In  Davidson  v.  Hull,  [1901]  2  K.  B.  000,  which  was  a  collision  on 
the  high  seas  between  a  Norwegian  and  an  English  vessel,  causing 
the  death  by  drowning  of  one  of  the  Norwegian's  crew,  it  was  held 
that  a  suit  would  lie  against  the  English  vessel.  The  question  turn- 
eel,  however,  mainly  on  the  construction  put  on  the  English  act  of 
Parliament  as  a  question  of  intent,  and  not  on  any  application  of 
the  principles  of  Conflict  of  Laws. 


§  116)  EFFECT   OF   CONTRIBUTORY   NEGLIGENCE  243 

the  cause  of  action  arose,  or  the  law  of  the  flag  if  it  arose 
on  the  high  seas,  and  if  shown  what  that  law  is.4IJ 

But  cases  often  arise  where  vessels  of  different  flags  col- 
lide. In  such  case  the  rights  of  injured  parties  against  their 
own  ship  are  governed  by  their  flag;  but  there  is  no  rem- 
edy against  the  other  ship,  under  the  doctrine  of  Conflict  of 
Laws  that,  if  the  laws  are  different,  neither  law  would  be 
applied.47 


EFFECT  OF  CONTRIBUTORY  NEGLIGENCE 
116.  Contributory  negligence  bars  recovery. 

There  is  one  anomaly  in  the  decisions  on  the  subject. 
Although  the  doctrine  finds  its  place  in  the  admiralty  law 
only  from  the  fact  that  it  is  maritime  by  nature,  it  is  held 
that,  even  in  the  admiralty  courts  in  suits  for  such  causes 
of  action  contributory  negligence  bars   recovery.48 

Admiralty  courts  have  their  own  doctrine  on  the  sub- 
ject of  contributory  negligence.  In  collision  cases,  where 
both  are  negligent,  the  damages  are  equally  divided. 

In  personal  injury  cases,  not  fatal,  the  damages  are  di- 
vided, not  equally,  but  much  as  the  judge  may  think  equi- 
table, considering  the  circumstances  and  the  relative  fault 
of  the  parties.49 

4  6  Lainington  (D.  C.)  87  Fed.  752;  Panama  R.  Co.  v.  Napier  Ship- 
ping Co.,  166  U.  S.  2S0,  17  Sup.  Ct.  572,  41  L.  Ed.  1004;  Northern 
Pac.  R.  Co.  v.  Biihcock,  154  U.  S.  190,  14  Sup.  Ct.  978,  38  L.  Ed.  958 ; 
Manning  v.  International  Mercantile  Marine  Co.,  212  Fed.  933,  129 
C.  C.  A.  453. 

47  Middlesex  (D.  C.)  253  Fed.  143;  Sagamore,  247  Fed.  743,  159 
C.   C.   A.   601. 

§  116.  4  8  Robinson  v.  Detroit  &  C.  Steam  Nav.  Co.,  73  Fed.  883, 
20  C.  C.  A.  S6;  Quinette  v.  Bisso,  136  Fed.  825,  69  C.  C.  A.  503,  5 
L.  R.  A.  (N.  S.)  303. 

49  Max  Morris,  137  U.  S.  1,  11  Sup.  Ct.  29,  34  L.  Ed.  5S6,  and  cases 
cited. 


244  ACTION   FOR   INJURIES    RESULTING  FATALLY      (Ch.  10 

In  other  words,  in  all  other  admiralty  cases  contribu- 
tory negligence  reduces  recovery,  but  does  not  defeat  it. 
But  in  this  case  the  rigid  doctrine  of  the  common  law  as  to 
contributory  negligence  is  applied. 


CONSTRUCTION  OF  PARTICULAR  STATUTES 

117.  Assuming  the  power  of  legislation  over  the  subject, 
state  or  federal,  as  defined  in  the  above  discus- 
sion, the  question  whether  any  given  statute  gives 
a  remedy  in  rem  is  a  matter  of  construction. 

Statutes  worded  substantially  as  Lord  Campbell's  Act  are 
usually  construed  as  not  so  intended.  It  has  been  seen  that 
the  House  of  Lords  so  construed  it  in  the  VERA  CRUZ,50 
and  that  the  Supreme  Court  so  construed  the  Louisiana 
statute  in  the  CORSAIR.51  Judge  Benedict  placed  a  similar 
construction  on  the  New  York  statute  in  the  Sylvan  Glen.52 
And  Judge  Hughes  so  construed  the  Virginia  statute  in 
the  Manhasset.53  Since  that  decision  the  Virginia  statute 
has  been  amended,  and  the  Circuit  Court  of  Appeals  for 
this  circuit  has  held  that  in  its  present  form,  as  found  in  sec- 
tion 2902  of  the  Virginia  Code  of  1887,  it  gives  the  right  of 
procedure  in  rem.54 

The  Washington  statute  is  held  to  give  no  right  in  rem.55 

§  117.    5°  10  A.  C.  50. 

si  145  U.  S.  335,  12  Sup.  Ct.  940,  36  L.  Ed.  727. 
52  (D.  C.)  0  Fed.  335. 
5  3  (D.  C.)  18  Fed.  918. 

a  Glendale  (D.  C.)  77  Fed.  006;    Id.,  81  Fed.  033.  26  C.  C.  A.  500. 
ss  Alaska  (D.  C.)  225  Fed.  645. 


§  118)  TORTS   TO   THE   PROPERTY  245 

CHAPTER  XI 
OF  TORTS  TO  THE  PROPERTY,  AND  HEREIN  OF  COLLISION 

US.     Rules  for  Preventing  Collisions,  the  Different  Systems,  and  the 
Localities  where  They  Apply. 

119.  Preliminary  Definitions. 

120.  Distinctive  Lights  Prescribed  for  Different  Vessels. 

121.  Sound  Signals  in  Obscured  Weather. 
*122.     Speed  in  Obscured  Weather. 

123.  Precautions  when  Approaching  Fog  Bank. 

124.  Steering  and  Sailing  Rules  in  Obscured  Weather. 

RULES  FOR  PREVENTING  COLLISIONS,  THE  DIF- 
FERENT SYSTEMS,  AND  THE  LOCALITIES 
WHERE  THEY  APPLY 

118.  There  are  four  different  sets  of  navigation  rules  which 
American  courts  may  have  to  administer,  namely, 
the  International  Rules,  the  Inland  Rules  for  Coast 
Waters,  the  Lake  Rules,  and  the  Mississippi  Val- 
ley Rules. 

The  torts  most  prolific  of  litigation  in  the  admiralty  are 
collisions  between  vessels.  To  that  cause  is  due  the  loss 
of  many  lives,  with  untold  valuable  property.  Until  the 
nineteenth  century  had  more  than  half  elapsed,  there  were 
no  rules  regulating  the  duties  of  approaching  vessels,  and 
navigation  was  a  happy-go-lucky  experiment,  in  which  the 
unfortunate  seafaring  man  was  at  the  mercy  not  only  of 
his  own  captain,  but  of  the  commanders  of  approaching  ves- 
sels as  well. 

The  common  acceptation  of  the  word  "collision"  in  ma- 
rine law  is  the  impact  of  two  or  more  vessels.1 

§  US.  i  Burnham  v.  China  Mutual  Ins.  Co.,  189  Mass.  100,  75  N.  E. 
71,  109  Am.  St.  Rep.  627 ;    Newtown  Creek  Towing  Co.  v.  Mtna  Ins. 


24G  TORTS  TO  THE  PROPERTY  (Ch.  11 

The  earlier  statutes  contented  themselves  with  requiring 
vessels  to  carry  lights  at  night,  for  until  1838,  even  in  this 
country,  that  was  not  a  matter  obligatory,  though  the 
courts  had  held  that  under  the  circumstances  of  particular 
cases  it  was  required  of  a  moving  vessel  to  show  a  light  on 
approaching  another  vessel  as  a  precaution  demanded  of  a 
prudent  navigator.2 

In  England,  though  special  statutes  had  prescribed  rules 
for  special  cases,  no  code  of  rules  intended  to  regulate  the 
navigation  of  vessels  in  relation  to  each  other  was  promul- 
gated until  under  the  statute  of  25  &  26  Vict.,  the  regu- 
lations prescribed  by  the  orders  in  council  were  put  in  force 
as  of  June  1,  1863.  These  were  intended  to  prescribe  not 
only  the  lights  which  vessels  must  carry  at  night,  but  all 
possible  contingencies,  including  their  duties  in  a  fog,  the 
relative  duties  of  steamer  to  steamer,  sail  to  sail,  and 
steamer  to  sail.  They  were  enacted  in  substantially  the 
same  form  by  Congress  on  April  29,  1864,  and  constitute 
section  4233,  Rev.  St.  U.  S.3 

These  rules,  however,  though  regulating  lights,  and  the 
proper  methods  of  steering  and  sailing,  prescribed  no  sig- 
nals except  during  fog.  This  defect  in  our  country  was 
remedied  by  the  board  of  supervising  inspectors,  who,  by 
virtue  of  authority  conferred  on  them  by  section  4412,  Rev. 
St.,  U.  S.  Comp.  St.  §  8166  (to  establish  regulations  to  be 
observed  by   steam  vessels  in  passing  each  other,  copies 

Co.,  163  N.  T.  114,  57  N.  E.  302 ;  Cline  v.  Western  Assur.  Co.,  101  Va. 
496,  44  S.  E.  700;  Chandler  v.  Blogg,  [1898]  1  Q.  B.  32;  Margette 
&  Ocean  Aceident  &  Guarantee  Ass'n,  In  re,  [1901]  2  K.  B.  792.  But 
if  we  take  the  Corsair,  145  U.  S.  335,  12  Sup.  Ct.  949,  36  L.  Ed,  7127. 
literally,  if  looks  as  if  the  Supreme  Court  included  in  the  term  the 
striking  of  a  Mississippi  mud  hank! 

20sprey,  l  Spr.  L'l.".  Fed.  Cas.  No.  10.606.  Louisiana,  21  How, 
1,  16  I,.  Ed.  i".):    l  Parsons,  S.  &  A.  550. 

8  They  are  now  in  the  main  the  Mississippi  Valley  rules,  though 
amended  in  many  particulars  since  lsh'4.    U.  S.  Comp.  St.  §§  7942- 

7!>7>. 


§  118)  RULES  FOR  PRE  VENTING  COLLISIONS  247 

of  such  regulations  to  be  posted  in  conspicuous  places  on 
such  steamers),  provided  signals  by  whistle, # which  en- 
abled masters  of  approaching  vessels  to  indicate  to  each 
other  their  exact  intentions.  These  rules  governed  all  ves- 
sels in  American  waters — even  foreign  vessels.4  Though 
admirable  in  their  general  scope,  they  were  yet  far  from 
perfect,  and  the  next  advance  was  the  enactment  of  the 
International  Rules  of  1885.  They  went  into  force  in  this 
country  on  March  '3,  1885,  but  they  were  expressly  lim- 
ited to  the  high  seas  and  coast  waters.  And  so  we  had 
two  sets  of  rules  in  force — the  rules  of  1864,  embodied  in 
section  4233,  Rev.  St.,  supplemented  by  the  Supervising  In- 
spectors' Rules,  all  applying  only  to  inland  waters,  and  the 
International  Rules  of  1885,  applying  to  the  high  seas  and 
coast  waters. 

In  the  DELAWARE,5  the  Supreme  Court  decided  that 
the  line  between  the  two  was  the  place  of  taking  a  local 
pilot;  that  everything  on  regular  pilotage  ground  was  in- 
land, and  everything  outside  was  high  seas  or  coast  wa- 
ters. 

In  1889  representatives  from  the  leading  maritime  na- 
tions met  in  Washington  by  invitation  of  our  government, 
still  further  elaborated  the  code  of  navigation,  and  recom- 
mended to  their  respective  principals  to  adopt  the  result  of 
their  deliberations.  On  August  19,  1890  (26  Stat.  320), 
Congress  enacted  it  into  law,  to  go  into  effect,  however,  at 
a  time  to  be  fixed  by  presidential  proclamation. 

In  some  particulars  these  rules  were  unsatisfactory,  and 
they  remained  in  a  state  of  suspended  animation  till  July  1, 
1897. 

They  were  further  amended  by  Act  May  28,  1894,6  and 
Act  June  10,  1896,7  and  on  December  31,  1896,8  the  proc- 


4  Sarmatian  (C.  C.)  2  Fed.  911. 

5 101  U.  S.  459,  16  Sup.  Ot.  516,  40  L.  Ed.  771. 

e  28  Stat.  82.  »  29  Stat.  381.  8  29  Stat.  8S5. 


248  TORTS  TO  THE  PROPERTY  (Ch.  11 

lamation  of  the  President  formally  put  them  in  force  as  of 
July  1,  1897. 

These  rules  purported  to  apply  to  "the  high  seas  and  all 
waters  connected  therewith  navigable  by  seagoing  vessels." 
But  its  thirtieth  article  provided  that  nothing  in  them 
should  interfere  with  the  operation  of  a  special  rule,  duly 
made  by  local  authority,  relative  to  the  navigation  of  any 
harbor,  river,  or  inland  waters. 

By  Act  Feb.  19,  1895,9  Congress,  acting  under  this  saving 
clause,  kept  in  force  the  rules  found  in  section  4233,  Rev. 
St.,  and  the  Inspectors'  Rules  supplementing  them,  for  har- 
bors, rivers  and  inland  waters  (not  including  the  Great 
Lakes  and  their  tributaries),  declared  them  rules  made  by 
local  authority,  and  directed  the  Secretary  of  the  Treasury 
to  define  the  lines  between  such  waters  and  the  high  seas, 
which  was  done.  But  by  Act  June  7,  1897,10  Congress  codi- 
fied the  inland  rules  also,  making  them  apply  on  all  har- 
bors, rivers,  and  inland  waters,  except  the  Great  Lakes,  the 
Red  River  of  the  North,  and  the  waters  emptying  into  the 
Gulf  of  Mexico.  This  act  repealed  sections  1  and  3  of  Act 
Feb.  19,  1895,  but  left  section  2  of  that  act  (by  which  the 
Secretary  of  the  Treasury  was  directed  to  define  the  lines 
between  the  high  seas  and  inland  waters)  still  in  force. 
These  rules  went  into  effect  on  October  1,  1897.  Both  these 
rules  and  the  International  Rules  were  slightly  amended  by 
Act  Feb.  19,  1900, ir  prescribing  the  lights  required  of 
steam  pilot  vessels. 

Navigation  on  the  Great  Lakes  is  regulated  by  Act  Feb. 
8,  1895,12  which  applies  to  the  Great  Lakes  and  their  con- 
necting and  tributary  waters  as  far  east  as  Montreal. 

Navigation  on  the  Mississippi  river  as  far  down  as  New 
<  >i  leans,  also  on  its  tributaries  and  on  the  Red  River  of  the 

»28  Stat.  672  (U.  S.  Oomp.  St.  §§  7971  -7974). 
1030  Stat.  96  (U.  S.  Comp.  St.  SS  7872  7!>09). 
ii31  Stat.  30  (U.  s.  Comp.  St.  §§  7845,  7846). 
1228  smt.  645  (U.  S.  Comp.  St.  SS  7910  7941). 


§  118)  RULES  FOR  PREVENTING  COLLISIONS  249 

North,  is  governed  still  by  the  old  rules  found  in  section 
4233,  Rev.  St.,  and  amendments  and  the  pilot  rules  for  West- 
ern rivers  supplementing  them. 

Hence  the  courts  may  be  required  to  administer  any  one 
of  four  sets  cf  rules : 

(1)  The  International  Rules  for  collisions  on  the  high 
seas. 

(2)  The  Inland  Rules  for  collisions  on  coast  waters  or 
waters  connecting  therewith,  inside  of  the  dividing  lines 
fixed  by  the  Secretary  of  the  Treasury. 

(3)  The  Lake  Rules  for  the  Great  Lakes  and  their  ad- 
jacent streams. 

(4)  The  Mississippi  Valley  Rules.13 

And,  besides  all  these,  the  courts  have  held  that  vessels 
navigating  any  given  waters  are  bound  to  observe  rules 
made  by  municipal  or  state  authority  for  that  locality.14 
For  instance,  a  New  York  statute  requiring  boats  navigat- 
ing the  East  river  to  keep  in  mid-stream,  away  from  the 
docks,  so  as  to  allow  unimpeded  ingress  to  them,  has  been 
held  obligatory  on  vessels.1-5 

Many  ports  abroad  have  their  local  rules,  and  these  are 
enforced  by  the  courts.16 

Even  local  customs  not  emanating  from  legislative  au- 
thority are  binding.17 

Though  there  are  striking  differences  between  these  four 

is  In  the  Albert  Dumois,  177  U.  S.  240,  20  Sup.  Ct.  595,  44  L.  Ed. 
7-">1.  Mr.  Justice  Brown  gives  a  brief  history  of  the  adoption  of 
the  different  rules.  For  the  Order  in  Council  putting  the  rules  in 
effect  as  to  English  vessels,  see  [1S96]  P.  307. 

«  U.  S.  v.  St.  Louis  &  M.  V.  Transp.  Co.,  154  U.  S.  247,  22  Sup. 
Ct.  350,  46  L.  Ed.  520. 

is  Ivanhoe,  7  Ben.  213,  Fed.  Cas.  No.  7.113;  Bay  State,  3  Blatchf. 
48,  Fed.  Cas.  No.  1,119;  Favorita,  IS  Wall.  59S,  21  L.  Ed.  856;  Hart- 
ford (D.  C.)  125  Fed.  559 ;  Id.,  135  Fed.  1021,  6S  C.  C.  A.  230. 

16  Margaret,  9  A.  C.  873;    Spearman,  10  A.  C.  276. 

it  Fyenoord,  Swab.  374;  VICTORY,  168  U.  S.  410,  IS  Sup.  Ct. 
149,  42  L.  Ed.  519 ;    Agnella  (D.  C.)  198  Fed.  147. 


250  TORTS  TO  THE  PROPERTY  (Ch.  11 

sets  of  rules,  their  general  scheme  is  the  same,  and  therefore 
the  International  Rules  will  be  made  the  basis  in  this  dis- 
cussion, though  attention  will  be  directed  to  some  of  the 
more  important  differences.  It  will  be  found  that  they  con- 
stitute a  common  language  of  the  sea,  by  which  approaching 
navigators,  no  matter  what  their  nationality,  may  speak  to 
each  other  in  tones  understood  of  all  seafaring  men.  Un- 
der them,  if  followed,  collisions  need  never  occur,  unless  by 
some  negligence  or  inattention  which  no  rules  can  prevent ; 
for  in  this,  as  in  the  other  affairs  of  life,  the  personal  equa- 
tion cannot  be  completely  eliminated. 

In  view  of  the  adoption  of  these  rules  by  the  more  im- 
portant maritime  nations,  they  constitute  a  communis  jus, 
and  govern  ships  of  different  flags  as  well  as  those  of  the 
same  flag  in  collisions  occurring  out  of  the  jurisdiction  of 
any  one  nation,  it  being  assumed  in  the  absence  of  evidence 
to  the  contrary  that  the  law  is  common  to  both  ships.  But 
if  the  law  of  the  flags  differs,  each  may  obey  his  own  law 
without  being  guilty  of  negligence.18 

The  court  takes  judicial  notice  of  these  International 
Rules,  but  any  variation  of  them  by  any  particular  nation 
must,  like  any  other  foreign  law,  be  proved  as  a  fact.1'9 

PRELIMINARY  DEFINITIONS 

119.  The  first  aim  of  the  rules  is  to  classify,  for  the  pur- 
pose of  the  regulations,  steam  vessels  and  sailing 
vessels  and  vessels  under  way,  etc. 

The  relative  duties  of  steam  and  sail  vessels  and  of  ves- 
sels under  way  and  vessels  at  anchor  arc  so  different  (as  will 
appear  hereafter)  that  the  first  effort  of  the  rules  is  to  dis- 
tinguish these  cases  closely.     Accordingly,  in  the  prelimi- 

isBelgenland,  114  U.  S.  :\">,  5  Sup.  Ct.  SCO.  29  L.  Ed.  152;  Ham- 
ilton. 207  U.  S.  398,  28  Sup.  Ct.  j:::;.  52  I..  Ed.  264. 

i»  New  York.  175  U.  S.  187,  20  Sup.  Ct.  67,   II  L.  Ed.  126. 


§  120)       DISTINCTIVE   LIGHTS   FOR   DIFFERENT   VESSELS  251 

nary  definition,  every  vessel  under  sail,  though  by  build  a 
steamer,  is  treated  as  a  sail  vessel,  and  every  vessel  under 
steam  or  propelled  by  machinery  is  considered  a  steam  ves- 
sel. This  latter  definition  would  include  electric  or  naphtha 
launches,  which,  indeed,  as  far  as  the  local  rules  are  con- 
cerned, are  brought  into  the  categor}^  of  steam  vessels  by 
express  act  of  Congress.20  On  the  other  hand,  a  broken- 
down  steamer,  slowly  finding  her  way  into  port  under  sail, 
is,  as  to  other  vessels,  considered  a  sail  vessel. 

So,  too,  in  order  to  avoid  any  possible  misunderstanding, 
a  vessel,  though  her  headway  is  killed  in  the  water,  is 
considered  under  way,  unless  she  is  at  anchor,  or  tied  to 
the  shore,  or  aground.  The  reason  is  that,  unless  she  is 
thus  fastened  to  something,  a  turn  of  her  engines  may  put 
her  under  way,  and  therefore  she  should  be  avoided.21 

DISTINCTIVE  LIGHTS  PRESCRIBED  FOR  DIFFER- 
ENT VESSELS 

120.  The  next  aim  of  the  rules  is  to  indicate  to  other  ves- 
sels the  character  and  course  and  bearing  of  a 
neighboring  vessel,  and  whether  she  is  in  motion. 
This  is  done  by  the  use  of  distinctive  lights,  white 
and  colored,  in  various  combinations,  for  unin- 
cumbered steamers,  incumbered  steamers,  sailing 
vessels,  etc. 

The  first  thirteen  articles  regulate  the  subject  of  vessels' 
lights. 

After  defining  the  word  "visible"  as  meaning  visible  on  a 
dark  night  with  a  clear  atmosphere,  it  is  provided  that  the 
lights  prescribed  shall  be  shown  from  sunset  to  sunrise,  and 

§  119.  20  29  Stat.  489  (U.  S.  Comp.  St.  §  8282) ;  Nirarod,  173  Fed. 
520;    Southern  (D.  C.)  224  Fed.  210.  215. 

21  Burrows  v.  Gower  (D.  C.)  119  Fed.  616;  George  W.  Elder,  249 
Fed.  956,  162  C.  C.  A.  154:  Romance,  [1901]  P.  15;  Upton  Castle, 
[1906]  P.  147;    Gladys,  [1910]  P.  13. 


252  TORTS  TO  THE  PROPERTY  (Ch.  11 

that  no  others  which  could  be  mistaken  for  them  shall  be 
shown.  This  requirement,  however,  does  not  exempt  a 
vessel  from  taking  proper  measures  to  avoid  another  with- 
out the  lights  if  she  can  be  seen,  as  is  frequently  the  case 
just  after  sunset,  or  on  a  clear  moonlight  night,  but  it 
casts  on  the  offending  vessel  the  burden  of  showing  that 
her  offense  not  only  did  not,  but  could  not  possibly,  have 
contributed  to  the  accident.22 

The  first  effort  is  to  adopt  distinctive  lights  for  different 
classes  of  vessels,  so  that  steamers  unincumbered  or  with 
tows,  sail  vessels,  small  craft,  and  special  kinds  of  vessels, 
like  pilot  boats  and  fishing  vessels,  can  announce  their  char- 
acter at  a  glance.  This  is  accomplished  by  the  use  of  white 
lights,  colored  lights,  and  flare-up  lights  in  various  combina- 
tions. The  colored  lights  are  carried  on  the  sides  of  the 
vessel,  the  white  lights  on  the  line  of  the  keel,  and  at  an 
elevation. 
(1)  Unincumbered  Steamers  (Article  2) 

An  unincumbered  steamer  under  way  carries  a  white  light 
well  forward,  at  least  twenty  feet  above  the  hull,  strong 
enough  to  show  five  miles,  but  with  a  board  behind  it,  so 
arranged  that  it  cannot  be  seen  from  behind.  In  the  lan- 
guage of  the  rule,  it  shows  twenty  points.  As  there  are 
thirty-two  points  in  all,  this  makes  it  show  two  points  abaft 
the  beam  on  each  side ;  so  that  overtaking  vessels  cannot 
see  this  special  light  unless  they  are  nearly  up  to  a  point 
abeam.  This  is  called  the  "masthead  light,"  and  is  the 
white  light  usually  carried  by  seagoing  vessels.  This  light, 
in  the  Inland  Rules,  need  not  be  twenty  feet  above  the  hull. 

Steamers,  however,  instead  of  carrying  this  single  white 
light,  are  allowed  the  option  of  substituting  two  white 
lights.  In  this  case  an  additional  white  light  is  placed  aft 
amidships,  at  least  fifteen  feet  higher  than  the  bow  light. 

§  120.  "  B.  E.  Kirkland  (D.  C.)  5  Hughes,  L09, 48 Fed. 760 ;  Tillie, 
i::  Blatchf.  514,  Fed.  Cas.  No.  14,049;  PENNSYLVANIA,  19  Wall. 
L25,  22  I..  Ed.  148;    Bougainville,  L.  R.  5  P.  0.  316. 


§  120)       DISTINCTIVE  LIGHTS   FOR   DIFFERENT   VESSELS  253 

In  the  International  Rules,  it  is  screened  like  the  one  for- 
ward ;  in  the  Inland  Rules  it  shows  all  around  the  horizon. 
These  two  lights  possess  the  important  advantage  of  giv- 
ing a  range,  and  thus  announcing  the  exact  direction  in 
which  their  bearer  is  moving.  This  is  not  important  at 
sea,  where  there  is  plenty  of  room  ;  but  it  is  important  in 
narrow,  crowded,  or  devious  channels,  and  hence  the  river 
and  bay  steamers  usually  adopt  this  plan.  In  the  Lake 
Rules  this  is  obligatory  on  steamers  over  150  feet  register 
length. 

The  colored  lights  prescribed  for  steamers  are:  On  the 
starboard  or  right-hand  side,  a  green  light  strong  enough 
to  be  visible  at  least  two  miles,  and  fitted  with  screens,  so 
arranged  that  it  will  not  show  backwards  till  an  approach- 
ing vessel  is  within  two  points  of  abeam,  and  that  it  will 
not  show  across  the  ship  ;  in  other  words,  it  must  only  show 
from  right  ahead  to  two  points  abaft  the  beam.  On  the 
port  or  left-hand  side  there  is  a  red  light  screened  in  the 
same  way.  Thus  a  vessel  moving  right  ahead  in  exactly 
the  opposite  direction  would'  see  both  colored  lights  (or 
side  lights  as  they  are  usually  called)  and  the  masthead 
light,  or  the  two  range  lights  in  line,  would  know  that  she 
was  meeting  a  steamer,  and  would  govern  herself  accord- 
ingly. 

In  the  Mississippi  Valley  Rules,  steamers  carry  simply 
the  colored  lights,  attaching  them  to  their  respective  smoke- 
stacks, and  arranging  them  to  show  only  forward  and 
abeam.23 

(2)  Steamers  with  Tows  (Article  3) 

Let  us  now  suppose  that  our  steamer  takes  another  ves- 
sel in  tow.  How  does  she  announce  the  fact  to  her  marine 
neighbors?  She  accomplishes  it  by  additional  white  lights. 
If  she  uses  the  masthead  light,  she  hangs  another  one  six 
feet  under  it,  and  screened  just  like  it,  and  still  another  if 

23  See  Pilot  Rule  No.  10  for  Western  Rivers. 


254  TORTS  TO  THE  PROPERTY  (Ch.  11 

her  tow  consists  of  more  than  one  vessel,  and  is  over  600 
feet  long". 

Here  there  is  a  slight  difference  between  the  Interna- 
tional Rules  and  the  Local  Rules.  Under  the  latter  she  puts 
the  additional  light  or  lights  under  the  after-range  light, 
three  feet  apart,  and  uses  for  the  purpose  lights  which,  like 
it,  show  all  around  the  horizon.  Tugs  in  harbor  work  use 
this  latter  rig. 

These  lights  must  be  strictly  one  over  the  other.24 

The  Lake  Rules  require  only  one  towing  light,  no  matter 
how  long  the  tow,  and  a  special  light  if  the  tow  is  a  raft. 

The  Mississippi  Valley  Rules  (where  unincumbered  riv- 
er steamers  have  no  white  lights)  require  two  vertical  tow- 
ing lights  forward,  arranged  to  show  an  arc  like  the  mast- 
head lights. 

Hence  an  approaching  vessel,  seeing  these  "towing"  or 
"vertical"  lights,  as  they  are  usually  called,  knows  that  it  is 
meeting  a  steamer  with  a  tow,  and  must  regulate  its  naviga- 
tion not  only  in  reference  to  the  tug,  but  the  other  vessel 
behind  it. 
fS)  Special  Lights  (Article  5) 

Vessels  not  under  command  carry  two  vertical  red  lights 
at  night,  showing  all  around  the  horizon,  or  two  black  balls 
by  day;  and  vessels  laying  telegraph  cables  have  peculiar 
lights,  warning  other  vessels  of  their  mission.  The  Inland 
Rules,  Lake  Rules,  and  Mississippi  Valley  Rules  have  no 
corresponding  lights  or  balls. 

This  means  not  under  command  from  some  accidental 
cause,  and  would  not  cover  the  case  of  a  vessel  hove  to,  or 
not  under,  immediate  command  voluntarily.25 

Nor  would  it  apply  to  a  steamer  partially  disabled,  but 
still  moving  slowly  and  steering.26 

2*  Foster  v.  Merchants'  &  Minors'  Transp.  Co.  (D.  C.)  134  Fed. 
964. 

25  Burrows  v.  Gower  (D.  C.)  119  Fed.  616;    Bellanoch,  [1907]  A.  C. 

■2C,>). 

2B  P.  Caland,  [1893]  A.  C.  £07. 


§  120)       DISTINCTIVE   LIGHTS  FOR   DIFFERENT   VESSELS  255 

(4)  Sail  Vessels  and  Vessels  Towed  (Article  5) 

These  carry  the  two  colored  or  side  lights  prescribed  for 
steamers,  and  no  others.  Hence  a  mariner  seeing  only  a 
colored  light  or  lights  on  a  vessel  knows  that  it  is  a  sail 
vessel,  or  a  vessel  towed.  If,  at  a  second  glance,  he  sees  no 
steamer  in  front  showing  the  tow  lights  just  described,  he 
knows  it  is  a  sail  vessel. 

(5)  Small  Vessels  (Article  6) 

These  can  carry  movable  colored  lights  and  show  them 
to  an  approaching  vessel.  The  International  Rules  and  the 
Lake  Rules  do  not  define  what  is  meant  by  a  small  vessel ; 
the  corresponding  inland  rule  defines  it  as  a  vessel  of  less 
than  ten  gross  tons. 

By  the  Act  of  June  9,  1910,27  Congress  made  special  pro- 
vision for  "motor  boats,"  which  were  defined  as  "every 
vessel  propelled  by  machinery  and  not  more  than  sixty- 
five  feet  in  length,  except  tugboats  and  towboats  propelled 
by  steam." 

The  rig  of  their  lights  varies  with  their  size ;  the  smaller 
type  having  a  white  light  aft  to  show  all  around  the  hori- 
zon, and  a  combined  lantern  for  the  green  and  red  lights, 
and  the  two  larger  sizes  having  two  white  lights,  fixed  to 
give  a  range,  and  the  colored  lights  on  each  side,  as  usual. 

(6)  Small  Steam  and  Sail  Vessels  and  Open  Boats  (Article  7) 
Steam  vessels  under  40  tons  and  sail  vessels  or  oar  ves- 
sels under  20  tons  gross  may  elect  a  different  rig  under  the 
international  rule.  The  steamers  may  have  a  small  white 
light  forward  and  a  combined  lantern,  showing  red  and 
green  on  the  proper  sides,  behind  the  white  light,  and  be- 
low it ;  the  sail  or  oar  vessel  may  have  a  similar  combina- 
tion green  and  white  light,  to  be  exhibited  on  the  approach 
of  another  vessel ;  and  rowboats  may  have  a  white  lantern 
to  be  shown  when  needed.  The  corresponding  inland  rule 
omits  this  provision  except  for  rowboats.    The  Lake  Rules 

"36  Stat.  462  (U.  S.  Conip.  St.  §  8277). 


256  TORTS  TO  THE  PROPERTY  (Ch.  11 

permit  a  combined  lantern  on  open  boats,  and  the  Missis- 
sippi Valley  Rules  permit  it  on  boats  under  ten  tons  pro- 
pelled by  gas,  fluid,  naphtha,  or  electric  motors. 

(7)  Pilot  Vessels  (Article  8) 

These  show  a  white  light  at  the  masthead,  visible  all 
around,  and  a  flare-up  light  every  fifteen  minutes,  to  attract 
attention.  When  not  on  their  station,  they  exhibit  the  or- 
dinary lights.  If  it  is  a  steam  pilot  boat  on  its  station,  it 
must,  by  the  Act  of  February  19,  1900,28  amending  the  In- 
ternational Rules  and  Inland  Rules,  show  a  red  light  im- 
mediately under  the  masthead  light,  and  visible  all  around, 
with  the  colored  side  lights  if  not  at  anchor,  and  without 
them  if  at  anchor. 

(8)  Fishing  Vessels  (Article  9) 

The  International  Rule  on  this  class  is  not  of  interest. 
The  corresponding  Inland  Rule  provides,  in  substance,  that 
when  not  fishing  they  carry  the  ordinary  lights,  and  when 
fishing  they  use  a  special  rig. 

The  International  Rules  make  no  provision  for  a  large 
class  of  craft  common  in  American  waters,  such  as  rafts, 
mud  scows,  etc.  The  Inland  Rules  leave  this  to  the  super- 
vising inspectors.  By  Act  of  March  3,  1893, 29  this  power 
had  been  expressly  conferred  on  the  supervising  inspectors 
as  far  as  barges  and  canal  boats  were  concerned.  Accord- 
ingly, at  their  session  in  1894,  they  provided  a  multitude  of 
rules  for  such  boats  towing  tandem,  or  in  tiers,  or  alongside, 
which  it  is  hardly  worth  while  to  explain  in  detail.  The 
mud  scows  so  common  around  dredging  machinery  in  our 
harbors  are  required  to  carry  a  white  light  at  each  end,  not 
less  than  six  feet  above  the  deck.  The  Inland  Rules  and 
Lake  Rules  also  empowered  the  supervising  inspectors  to 
make  similar  regulations. 

•-■-  ::i  stiit.  30  (TJ.  s.  Comp.  St.  §§  7845,  TS46). 
29  27  Stat.  557  (U.  S.  Comp.  St.  §  7S49). 


§  120)        DISTINCTIVE   LIGHTS  FOR   DIFFERENT    VESSELS  257 

(9)  Overtaken  Vessels  (Article  10) 

It  is  obvious  from  the  preceding  explanations  that  a, 
steamer  rigged  with  the  masthead  light  instead  of  the  range 
white  lights  and  a-  sail  vessel  or  vessels  in  tow  cannot  be 
seen  from  behind,  as  all  their  lights  are  screened  so  as  to 
show  only  forward.  Hence  this  rule  provides  that  the  ves- 
sel being  overtaken  shall  show  from  astern  a  white  light 
or  a  flare-up  light.  They  may  fix  this  light  permanently, 
or  show  it  as  long  as  the  approaching  vessel  is  an  overtak- 
ing one ; 30  but,  if  fixed,  it  must  be  about  on  a  level  with  the 
side  lights,  and  so  screened  as  to  show  right  back  over  an 
arc  of  twelve  points,  or  135  degrees. 

The  Lake  Rules  (No.  12)  and  the  Mississippi  Valley 
Rules  require  sail  vessels,  on  the  approach  of  any  steamer 
during  the  night  time,  to  show  a  lighted  torch  upon  the 
point  or  quarter  to  which  such  steamer  shall  be  approach- 
ing. 

The  language  of  this  rule  is  broad  enough  to  include  a 
steamer  approaching  from  any  direction,  whether  the  sail 
is  at  anchor  or  not.  And,  accordingly,  there  were  several 
decisions  of  the  inferior  courts  holding  that  the  torch  must 
be  exhibited  under  all  circumstances.31 

But  in  the  OREGON,32  the  Supreme  Court  held  that  the 
provision  was  intended  to  supply  an  obvious  defect  in  the 
old  rules  in  requiring  no  light  shown  to  overtaking  vessels, 
that  this  was  its  primary  object,  and  that  it  did  not  apply 
to  anchored  vessels.  If  the  side  lights  are  good,  it  would 
not  be  necessary  to  show  it  to  steamers  approaching  anv 
point  forward  of  the  beam.33 

so  John  Bossert  (D.  C.)  148  Fed.  903;  168  Fed.  1021,  93  C.  C.  A. 
671;  Bernicia  (D.  C.)  122  Fed.  8S6 ;  Main,  L.  R.  11  P.  D.  132;  Es- 
sequibo,  L.  R.  13  P.  D.  51.  The  binnacle  light  is  not  a  sufficient  com- 
pliance with  the  rule.    Patroclus,  13  P.  D.  54. 

si  Lizzie  Henderson  (D.  G.)  20  Fed.  524;  Algiers  (O.  C.)  28  Fed. 
240. 

3  2  158  U.  S.  186,  15  Sup.  Ct.  804,  39  L.  Ed.  943. 

33  Brigham  v.  Luckenbach  (D.  C.)  140  Fed.  322. 
Hughes,Adm.  (2d  Ed.) — 17 


258  TORTS  TO  THE  PROPERTY  (Ch.  11 

In  any  event,  the  International  and  Inland  Rules  require 
it  to  be  shown  only  to  overtaking  vessels,34  except  as  an 
extra  precaution  under  article  12.35 

(10)  Anchor  Lights  (Article  11) 

This  is  an  important  light  in  roadsteads  and  harbors. 
It  is  a  white  light,  placed  in  the  rigging  so  as  to  be  visible 
all  around  the  horizon  for  a  distance  of  at  least  one  mile. 
Vessels  under  150  feet  long  must  not  carry  it  over  20  feet 
above  the  hull ;  vessels  over  that  length  carry  it  from  20  to 
f40  feet  above  the  hull.  If  the  vessel  is  over  150  feet  long, 
then  there  must  be  an  extra  light  astern.  It  need  not  nec- 
essarily be  forward  of  the  foremast,  but  may  be  in  the  fore- 
rigging,  if  the  view  is  unobstructed  all  around.36  A  vessel 
must  show  her  anchor  light  if  in  navigable  water,  though 
outside  the  channel  as  marked  by  the  buoys.87 

SOUND    SIGNALS    IN    OBSCURED    WEATHER 

121.  Distinctive  sound  signals  are  prescribed  for  different 
vessels  as  precautions  in  obscured  weather,  to  be 
used  when  the  obscuration  is  such  that  signals 
can  be  heard  further  than  lights  can  be  seen. 

The  Signals  Required 

Article  15  regulates  these  signals  in  case  of  obscured 
weather.  Steamers  navigating  as  such  give  them  on  their 
whistle  or  siren.  Sail  vessels  in  motion,  or  vessels  being 
towed,  give  them  on  a  fog  horn. 

a*  Algiers  (D.  C.)  38  Fed.  526.  The  Oregon  case  was  decided  prior 
to  the  rules  of  1897.  Article  12  was  added  by  these  rules,  and  made 
the  exhibition  of  the  flare  light  optional,  not  compulsory.  Martha 
E.  Wallace  (D.  C.)  148  Fed.  94. 

SB  Excelsior  (D.  C.)  102  Fed.  652;  Robert  Graham  D\m,  107  Fed. 
994,  47  C.  C.  A.  120. 

sePhilsidelphian,  [19001  P.  262. 

37  Oliver  (D.  C.)  22  Fed.  848. 


§  121)  SOUND   SIGNALS  IN   OBSCURED   WEATHER  259 

For  a  long-  time  the  horn  used  on  sail  vessels  was  an  or- 
dinary tin  horn,  blown  by  the  breath.  But  this  was  too 
unreliable,  and  so  since  the  rules  of  1885  it  has  been  re- 
quired to  be  sounded  by  "mechanical  means."  Those  now 
in  use  are  a  box  containing  a  bellows  worked  by  a  crank. 
The  blast  that  they  give  is  sufficient  to  be  heard  a  long  dis- 
tance. So  particular  are  the  courts  to  require  its  use  that, 
if  a  mouth  horn  is  used,  and  a  collision  occurs,  the  court 
will  require  the  offending  vessel  to  show  not  only  that  this 
negligence  might  not  have  contributed  to  the  collision,  but 
could  not  possibly  have  done  so.38 

While  a  vessel  is  not  required  to  carry  a  spare  mechanical 
horn,  and  may  use  a  mouth  horn,  in  case  of  an  accidental 
breakdown  of  the  other,  she  is  required  to  exercise  reason- 
able care  to  keep  her  mechanical  horn  in  order,  and  is  liable 
for  the  use  of  a  mouth  horn  in  case  she  does  not  do  so.89 

The  Inland  Rules  and  Lake  Rules  merely  require  an 
''efficient  fog  horn,"  and  do  not  require  it  to  be  sounded  "by 
mechanical  means." 

The  Mississippi  Valley  Rules  do  not  require  a  steamer 
to  carry  a  fog  horn,  and  do  not  require  the  fog  horn  car- 
ried by  sailing  vessels  to  be  sounded  by  mechanical  means. 

By  the  International  Rules  unincumbered  steamers  in  mo- 
tion sound  one  blast  every  two  minutes,  by  the  Inland  and 
Mississippi  Valley  Rules  they  sound  one  blast  every  minute, 
and  by  the  Lake  Rules  three  blasts  every  minute. 

By  the  International,  Inland,  and  Lake  Rules  sail  vessels 
blow  their  horns,  according  to  the  bearing  of  the  wind,  one 
blast  for  the  starboard  tack,  two  for  the  port,  and  three  for 
the  wind  abaft  the  beam. 

§  121.  ss  MARTELLO,  153  U.  S.  64,  14  Sup.  Ct  723,  38  L.  Ed. 
637 ;    Hercules,  80  Fed.  998,  26  C.  C.  A.  301. 

ss  Kenilworth  (D.  C.)  64  Fed.  S90 ;  Niagara,  84  Fed.  902,  28  0.  a 
A.  528 ;  Trave,  6S  Fed.  390,  15  C.  O.  A.  485. 


260  TORTS  TO  THE  PROPERTY  (Ch.  11 

The  Weather  in  Which  Signals  Required 

As  to  the  weather  in  which  those  signals  should  be  given, 
the  first  law  required  it  in  "fog  or  thick  weather."  Accord- 
ingly, under  those  rules,  it  was  held  that  they  need  not  be 
given  in  snow  storms.40 

The  International  Rules  of  1885  extended  the  require- 
ments of  signaling  to  "fog,  mist,  or  falling  snow" ;  and  the 
present  rules  extend  it  to  "fog,  mist,  falling  snow,  or  heavy 
rain  storms,"  showing  a  constantly  increasing  vigilance. 
The  Lake  Rules  are  equally  rigid. 

A  mere  haze  in  the  atmosphere  could  hardly  come  under 
the  term  fog.  Perhaps  the  best  definition  is  given  in  the 
MONTICELLO,41  in  which  Judge  Lowell  says:  "What  is 
a  fog,  such  as  the  statute  intends?  Is  it  every  haze,  by  day 
or  night,  of  whatever  density?  To  give  the  statute  a  rea- 
sonable interpretation,  we  must  suppose  that  its  intent  is 
to  give  to  approaching  vessels  a  warning  which  the  fog 
would  otherwise  deprive  them  of.  By  day  there  must  be 
fog  enough  to  shut  out  the  view  of  the  sails  or  hull,  or  by 
night  of  the  lights,  within  the  range  of  the  horn,  whistle,  or 
bell.  It  means  that  a  safeguard  of  practical  utility  under 
the  circumstances  should  be  provided.  If  it  be  entirely 
plain,  under  the  evidence,  that  the  ordinary  signals  are  suf- 
ficient, and  more  efficacious  than  the  horn  could  be,  the 
horn  will  not  be  required.  But  a  serious  doubt  upon  that 
point  must  weigh  against  the  vessel  failing  to  comply  with 
the  statute.  I  do  not  consider  it  to  be  enough  to  aver  and 
prove  that  the  lights  might  be  seen  in  time  to  avoid  serious 
danger;  but,  where  it  is  evident  that  the  fog  signal  could 
not  have  been  so  useful  as  the  ordinary  signal,  it  need  not 

40  Rock  away  (O.  C.)  25  Fed.  775. 

4i  1  Low.  1S4,  Fed.  Cas.  No.  9,739.  For  application  of  the  rule  to 
other  obscurations  of  the  atmosphere  than  fog,  see  Merchants'  & 
Miners'  Transp.  Co.  v.  Hopkins,  108  Fed.  S90,  48  C.  C.  A.  128;  Balti- 
more Steam  Packet  Co.  v.  Coastwise  Transp.  Co.  (D.  C.)  139  Fed. 
777  (a  "Scotch  mist").     Virginia  (D.  C.)  203  Fed.  351. 


§  121)  SOUND   SIGNALS   IN   OBSCURED  WEATHER  261 

be  used.  Thus,  if  the  lights  could  be  plainly  and  easily 
made  out  a  mile,  and  the  fog  horn  could  not  be  heard  at 
a  third  or  a  quarter  of  that  distance,  I  cannot  suppose  that 
such  a  state  of  the  atmosphere  would  amount  to  a  fog  in 
the  sense  of  the  law.  It  is  to  guard  against  some  danger 
which  the  fog  would  or  might  cause,  and  from  which  the 
horn  might  possibly  guard,  that  it  is  to  be  blown." 

This,  in  substance,  means  that,  if  the  weather  is  such  that 
the  whistles  can  be  heard  further  than  the  lights  can  be 
seen,  the  signals  should  be  given.  As  modern  whistles  are 
very  powerful,  and  the  side  lights  are  required  to  show  two 
miles,  the  logical  deduction  from  this  is  that,  if  the  mar- 
iners cannot  see  two  miles,  they  should  give  the  additional 
warning  of  the  signals.  In  practice  this  is  not  done.  And 
yet,  when  we  consider  that  two  vessels,  each  moving  fifteen 
miles  an  hour  (not  a  fast  rate  for  modern  steamers),  are, 
when  two  miles  apart  in  distance,  only  four  minutes  apart 
in  time,  we  see  that  but  little  time  is  left  for  reflection.  The 
distance  at  which  vessels  give  the  passing  signals  (explain- 
ed later  on)  is  usually  taken  as  half  a  mile.  At  this  distance, 
if  each  is  moving  fifteen  miles  an  hour,  they  are  only  a 
minute  apart  in  time. 

Vessels  at  anchor  ring  every  minute  (every  two  minutes 
by  the  Lake  Rules)  a  bell  for  five  seconds.  Towing  vessels, 
and  vessels  under  way,  though  not  under  command,  give 
every  two  minutes  a  signal  of  one  long  blast,  followed  by 
two  short  ones.  It  is  optional  with  vessels  in  tow  whether 
to  give  this  signal  or  not,  but  they  shall  not  give  any  other. 
Small  sailing  vessels  or  boats  may  give  these  or  not,  but 
must  make  some  good  noise. 

By  the  Lake  Rules  towing  steamers  give  the  same  signals 
as  free  steamers,  and  the  tow  must  also  give  signals  with 
her  bell.  And  steamers  with  rafts  give  frequent  screech  or 
Modoc  whistles. 


262  TORTS  TO  THE  PROPERTY  (Ch.  11 


SPEED  IN  OBSCURED  WEATHER 

122.  In  obscured  weather  vessels  must  go  at  a  moderate 
speed,  taking  all  circumstances  into  consideration. 

Article  16  lays  down  the  vital  and  essential  rule  for  fogs. 
It  provides  that  every  vessel  shall  go  at  a  moderate  speed, 
having  careful  regard  to  the  existing  circumstances  and  con- 
ditions. This  term  "moderate  speed"  is  elastic  in  its  mean- 
ing, and  has  been  the  subject  of  much  judicial  discussion. 
It  varies  to  some  extent  with  the  character  of  the  vessel, 
and  to  a  very  great  extent  with  the  character  of  the  local- 
ity. A  speed  that  is  moderate  on  the  high  seas  out  of  the 
usual  track  of  navigation  would  be  highly  dangerous  in 
harbors  or  their  approaches.  A  moderate  speed  for  a 
steamer  would  be  an  immoderate  one  for  a  sail  vessel.  A 
speed  that  is  moderate  when  you  can  see  a  mile  would  be 
excessive  when  you  can  see  a  hundred  yards. 

It  would  be  impossible  to  review  even  a  small  part  of  the 
decisions  on  this  subject.  We  must  content  ourselves  with 
elucidating  a  few  general  principles. 

Requirement  of  Moderate  Speed  Applies  Alike  to  Sail  and 
Steam  Vessels 

The  requirement  applies  as  well  to  sail  vessels  as  to 
steamers.  In  a  fog  they  must  not  only  give  their  signals 
properly,  but  they  must  shorten  sail  until  their  speed  is  just 
sufficient  for  steerage  way.  As  they  have  no  means  of  stop- 
ping and  backing,  like  steamers,  it  is  the  more  incumbent 
on  them  to  obey  this  rule. 

In  the  George  Bell,42  which  was  a  collision  on  the  Banks, 
the  fog  was  such  that  they  could  see  for  300  yards.     The 

§  122.  423  Hughes,  468,  Fed.  Cas.  No.  5,856.  Instances  of  im- 
moderate speed  in  sailing  vessels.  Chattahooehe,  173  U.  S.  540,  19 
Sup.  Ct.  491,  43  L.  Ed.  801;  David  Crockett  (D.  C.)  S4  Fed.  C98 ; 
Sif  (D.  C.)  157  Fed.  454;  Oceania  Vance,  233  Fed.  77,  147  O.  C.  A. 
147. 


§  122)  SPEED  IN   OBSCURED   WEATHER  263 

court  held  that  a  speed  of  five  miles  an  hour  was  too  fast, 
due  to  the  fact  that  the  ship  was  carrying  its  main  sail  and 
mizzen  sail. 

In  the  well-considered  English  case  of  the  ZADOK,43  a 
sailing  vessel  was  held  at  fault  which  was  carrying  prac- 
tically all  her  canvas ;  and  the  true  criterion  was  announced 
to  be  the  ability  to  steer. 

"It  is  the  duty  of  the  ship,  whether  she  be  a  sailing  vessel 
or  a  steamer,  to  moderate  her  speed  as  much  as  she  can, 
yet  leaving  herself  with  the  capacity  of  being  properly 
steered." 

Steamers  must  Go  so  Slow  in  Frequented  Waters  as  to  be  Able 
to  Stop  on  Seeing  Other  Vessel 

The  rule  requires  the  speed  of  steamers  to  be  such  that 
they  can  stop  on  seeing  the  approaching  vessel,  assuming 
her  also  to  be  going  at  a  moderate  speed.  This  seems  to  be 
the  result  of  the  recent  decision  of  the  UMBRIA,44  which 
reviews  the  question  of  fog  speed  and  fog  maneuvers  at 
length.  Despite  the  high  authority  of  the  court,  and  the  spe- 
cial respect  which  marine  lawyers  pay  to  the  opinions  of 
Mr.  Justice  Brown,  this  does  not  seem  to  be  a  satisfactory 
or  practical  test.  In  the  first  place,  it  makes  us  measure  a 
man's  conduct  by  the  motions  of  the  other  vessel,  which  he 
could  not  have  known  at  the  time ;  and  we  are,  therefore, 
trying  him  on  facts  developed  long  afterwards  in  the  court 
room,  and  not  on  the  facts  as  they  appeared  to  him. 

In  the  next  place,  the  fog  may  be  so  thick  that  one  can 
hardly  see  the  stem  of  his  own  vessel,  much  less  an  ap- 
proaching vessel,  even  though  only  a  few  yards  off.  Hence 
the  rule,  carried  to  its  logical  consequences,  would  require 
the  vessel  to  anchor,  and  then,  as  Mr.  Justice  Clifford  says 
in  the  Colorado,45  she  is  in  danger  from  vessels  astern. 

43  9  P.  D.  at  page  116. 

4  4  166  U.  S.  404,  17  Sup.  Ct.  610,  41  L.  Ed.  1053. 

45  91  U.  S.  692,  23  L.  Ed.  379- 


264  TORTS  TO  THE  PROPERTY  (Ch.  11 

In  the  next  place,  it  is  a  very  uncertain  test.  Different 
steamers  can  stop  in  different  distances,  depending  on  the 
power  of  their  engines.  Hence  this  test  implies  that  the 
navigator  must  know  the  handiness  of  the  other  steamer  as 
well  as  his  own. 

The  rule,  though  expressed  in  broad  terms  in  the  cases, 
has  been  applied  in  its  strictness  only  to  collisions  happen- 
ing in  much-traveled  lanes  of  navigation.  It  would  be  car- 
rying it  to  extremes  to  apply  it  literally  to  the  entire  ex- 
panse of  the  high  seas.46 

There  is  another  rule,  simpler,  dependent  on  knowledge 
of  his  own  vessel  only,  and  in  its  practical  results  much  saf- 
er. It  is  laid  down  in  the  ZADOK  CASE,  above  cited,  and 
in  many  Supreme  Court  cases  before  the  UMBRIA.  It 
cannot  be  better  expressed  than  to  quote  Justice  Clifford's 
opinion  in  the  Colorado:47  "Very  slow  speed,  just- suffi- 
cient to  subject  the  vessel  to  the  command  of  her  helm." 
In  the  MARTELLO,48  the  Supreme  Court  says  that  the 
vessel  must  "reduce  her  speed  to  the  lowest  possible  point 
consistent  with  good  steerageway." 

As  samples  of  what  speed  the  courts  consider  immod- 
erate, we  might  cite  the  PENNSYLVANIA,49  where  a 
speed  in  a  steamer  of  seven  miles  an  hour  at  a  point  two 
hundred  miles  out  at  sea,  but  in  the  track  of  navigation,  was 
condemned ;  and  the  MARTELLO,50  where  a  speed  of  six 
miles  an  hour  in  the  lower  harbor  of  New  York  was  thought 
too  fast. 

4  6  Dordogne,  10  P.  D.  6;  Moore,  Rules  of  the  Road,  38;  Marsden, 
Collision,  355,  357. 

47  91  U.  S.  692,  23  L.  Ed.  379. 

*8  153  U.  S.  at  page  70,  14  Sup.  Ct.  723,  38  L.  Ed.  637. 

49  19  Wall.  125,  22  L.  Ed.  148. 

60  153  U.  S.  64,  14  Sup.  Ct.  723,  38  L.  Ed.  637.  See,  also,  La 
Bourgogne,  210  U.  S.  95,  28  Sup.  Ct.  664,  52  L.  Ed.  973;  Beaver, 
219  Fed.  134,  135  C.  C.  A.  32;  affirmed  243  U.  S.  291,  37  Sup.  Ct. 
270,  61  L.  Ed.  726 ;  also  253  Fed.  312,  165  C.  C.  A.  94 ;  Quinette  v. 
Bisso,  136  Fed.  825,  69  C.  C.  A.  503,  5  L.  R.  A.  (N.  S.)  303;    Nord- 


124)  STEEK1NG   AND   SAILING   RULES   LN   FOG  265 


PRECAUTIONS  WHEN  APPROACHING  FOG  BANK 

123.  Vessels  approaching  fog  banks  are  bound  to  use  the 

precautions  of  sound  signals  and  moderate  speed. 

As  the  object  of  fog  signals  and  slow  speed  is  the  protec- 
tion of  other  vessels,  the  law  requires  a  vessel  to  take  these 
precautions  as  she  approaches  a  fog  bank,  and  even  before 
she  enters  it,  for  she  cannot  know  what  is  in  the  bank 
ahead  of  her.51 

The  laws  of  acoustics  are  so  little  understood,  and  the  fail- 
ure to  hear  signals  in  fog  so  inexplicable,  that  such  failure 
is  not  negligence  under  the  decisions.52 

STEERING  AND   SAILING  RULES  IN   OBSCURED 
WEATHER 

124.  The  rules  do  not  apply  when  vessels  are  not  and  can- 

not be  aware  of  each  other's  proximity,  but  they 
apply  when  they  have  definitely  located  each  other, 
though  not  so  rigidly,  and  the  special  precaution 
rule  has  more  scope. 

In  a  fog,  when  vessels  cannot  see  or  locate  each  other, 
the  ordinary  steering  and  sailing  rules  do  not  apply,  for 
they  presuppose  a  knowledge  of  the  other  vessel's  charac- 
ter, bearing,  and  course,  which  cannot  be  known  in  fog.53 

amerika  (D.  C.)  191  Fed.  997 ;  Sagamore,  247  Fed.  743,  159  C.  C.  A. 
601. 

§  123.  si  Milanese,  4  Asp.  43S ;  Perkiomen  (D.  C.)  27  Fed.  573; 
Julia  Luckenbach  (D.  C.)  219  Fed.  GOO,  affirmed  Indra  Line  v.  Palmet- 
to Phosphate  Co.,  239  Fed.  94,  152  C.  C.  A.  144;  St.  Paul  [1909] 
P.  43. 

52  Spencer,  Marine  Coll.  138,  139.  Columbia  (D.  C.)  104  Fed.  105; 
Curran,  [1910]  P.  1S4. 

§  124.  53  August  Korff  (D.  C.)  74  Fed.  974;  Celtic  Monarch  (D. 
C.)  175  Fed.  1000,  100S ;   Geo.  F.  Randolph  (D.  C.)  200  Fed.  96. 


266  TORTS  TO  THE  PROPERTY  (Ch.  11 

The  passing  signals  under  article  28  of  the  International 
Rules  and  article  18,  rule  8,  of  the  Inland  Rules,  are  express- 
ly limited  to  cases  when  the  vessels  are  in  sight  of  one 
another.54 

"But  it  is  urged  that  the  Negaunee,  being  on  the  port  tack, 
was,  under  the  seventeenth  rule  of  section  4233,  Rev.  St., 
required  to  keep  out  of  the  way  of  the  Portch;  that  the 
Portch  had  the  right  of  way,  and  was  to  hold  her  course, 
and  it  was  the  Negaunee's  duty  to  give  the  way  or  turn  out ; 
and  this  rule  would  be  aptly  invoked  if  the  proof  showed 
that  those  in  charge  of  the  Negaunee  had  sufficient  notice  of 
the  proximity  of  the  Portch  to  enable  them  to  execute  the 
proper  movements  to  give  the  Portch  the  way.  The  proof, 
however,  shows,  as  I  have  already  said,  that  at  the  time  the 
Negaunee's  officers  were  apprised  of  the  presence  of  the 
Portch  they  were  so  near  together,  and  a  collision  so  im- 
minent, that  it  was  futile  to  attempt  to  keep  out  of  the  way  ; 
and  it  seems  to  me  that,  under  the  circumstances,  rule  sev- 
enteen was  inoperative,  and  rule  twenty-four  of  the  same 
section,  which  required  that  due  regard  must  be  had  to  all 
the  dangers  of  navigation,  and  to  any  special  circumstances 
which  may  exist  in  any  particular  case  rendering  a  depar- 
ture from  the  general  rules  necessary  in  order  to  avoid  im- 
mediate danger,  became  the  guide  of  both  parties ;  that  is, 
that  each  party,  under  an  unexpected  impending  peril,  must 
do  what  he  can  promptly  to  avoid  it.'' 55 

"But  when  you  speak  of  rules  which  are  to  regulate  the 
conduct  of  people,  those  rules  can  only  be  applied  to  cir- 
cumstances which  must  or  ought  to  be  known  to  the  parties 
at  the  time.  You  cannot  regulate  the  conduct  of  people  as 
to  unknown  circumstances.  When  you  instruct  people,  you 
instruct  them  as  to  what  they  ought  to  do  under  circum- 
stances which  are,  or  ought  to  be,  before  them.    When  you 

siAurelia  (D.  C.)  183  Fed.  341;    North  Point  (D.  C.)  205  Fed.  958; 
Amagansett,  220  Fed.  827,  136  C.  C.  A.  437. 
6  0  Negaunee   (D.  C.)  20  Fed.  921. 


§  124)  STEERING  AND   SAILING   RULES   IN   FOG  267 

say  that  a  man  must  stop  and  reverse,  or,  I  will  say,  slacken 
his  speed,  in  order  to  prevent  risk  of  collision,  it  would  be 
absurd  to  suppose  that  it  would  depend  upon  the  mere  fact 
of  whether  there  was  risk  of  collision,  if  the  circumstances 
were  such  that  he  could  not  know  there  was  risk  of  colli- 
sion. I  put  some  instances  during  the  argument  to  show 
that  that  was  so.  The  rule  says  that  a  steamer  approaching 
another  vessel  ought  to  slacken  her  speed  if,  by  going  on, 
there  would  be  risk  of  collision.  But,  suppose  the  night 
were  quite  dark,  and  the  other  ship  was  showing  no  light  at 
all,  it  would  be  wrong  to  say,  with  regard  to  the  conduct  of 
those  on  the  steamer,  that  when  they  have  not  the  means  of 
knowing,  and  could  not  possibly  know,  that  there  was  an- 
other ship  in  their  way,  or  near,  they  ought  to  see  that  the 
other  ship  was  in  the  way  or  approaching,  and  that  it  is  no 
excuse  that  they  did  not  see  them.  Take  another  case : 
If  two  vessels  are  approaching,  each  on  a  different  course, 
which  will  cause  them  to  meet  on  a  high  headland,  so  that, 
until  they  are  absolutely  close,  they  cannot  see  each  other, 
it  is  quite  obvious  that,  if  both  are  steamers,  they  ought, 
on  the  suggested  reading  of  the  rule,  to  stop  and  reverse. 
But  how  can  you  regulate  their  conduct  if  neither  can  see 
the  other  until  they  are  close  together?  It  is  absurd  to  sup- 
pose that  you  could  regulate  their  conduct,  not  with  regard 
to  what  they  can  see,  but  to  what  they  cannot  see.  There- 
fore the  consideration  must  always  be,  in  these  cases,  not 
whether  the  rule  was  in  fact  applicable,  but  were  the  cir- 
cumstances such  as  that  it  ought  to  have  been  present  in  the 
mind  of  the  person  in  charge  that  it  was  applicable?"  66 

5  c  Beryl,  9  P.  D.  138,  139. 


268  STEERING  AND   SAILING   RULES  (Ch.  12 


CHAPTER  XII 
THE  STEERING  AND  SAILING  RULES 

125-127.     Origin,  Reasons  on  Which  Based,  and  General  Application. 

128.  Sail  Vessels. 

129.  Steamers— The  Port-Helm  Rule. 

130.  The  Crossing  Rule. 

131.  Steam  and  Sail. 

132.  Privileged  Vessels. 

133.  Crossing  Ahead. 

134.  The  Stop  and  Back  Rule. 

135.  Overtaking  Vessels. 

ORIGIN,  REASONS  ON  WHICH  BASED,  AND  GEN- 
ERAL APPLICATION 

125.  Rules  of  navigation  are  the  outgrowth  of  customs. 

126.  They  are  evolved  from  the  comparative  ease  of  han- 

dling different  types  of  vessels,  the  rule  of  turn  to 
the  right,  and  the  question  whether  there  is  risk 
of  collision. 

127.  They  regulate  the  relations  of  sail  to  sail,  steam  to 

steam,  and  steam  to  sail. 

The  fourth  part  of  the  navigation  rules  is  the  most  im- 
portant of  all.  It  contains  the  steering  and  sailing  rules, 
and  prescribes  the  course  which  approaching  vessels  must 
take  to  avoid  each  other  in  every  conceivable  situation,  and 
the  signals  to  be  given  to  indicate  their  respective  inten- 
tions. 

These  rules,  in  the  main,  are  not  new.  They  are  largely 
affirmations  of  previous  maritime  customs,  crystallized  at 
last  into  positive  enactments. 

Reasons  on  Which  Based 

There  are  three  underlying  principles  from  which  they 
are   derived,  for  they  are  based  on   reason,  and  any  one 


§§  125-127)     ORIGIN,  reasons;  general  application       269 

fixing  firmly  in  his  mind  the  reasons  which  gave  them  birth 
can,  if  gifted  with  a  moderate  knowledge  of  navigation  and 
ship  construction,  think  them  out  for  himself. 

(1)  The  first  of  these  principles  is  that  the  less  manage- 
able type  of  vessel  is  privileged  as  regards  the  more  man- 
ageable, and  the  latter  has  the  burden  of  avoiding  her.  For 
example,  sailing  vessels  are  favored  as  against  steamers,  an- 
chored vessels  as  against  moving  vessels,  and  vessels  close- 
hauled  as  against  vessels  with  a  free  wind. 

(2)  Other  things  being  equal,  the  rule  of  the  road  at  sea 
is  the  same  as  on  land ;  and  the  endeavor  of  these  naviga- 
tion rules  is  to  make  vessels,  wherever  possible,  always  pass 
to  the  right,  like  two  vehicles  on  a  public  road. 

(3)  The  rules  are  only  intended  to  apply  when  vessels 
are  approaching  each  other  in  such  directions  "as  to  involve 
risk  of  collision."  A  detailed  examination  of  the  rules  will 
show  that  this  qualifying  phrase  is  embodied  in  nearly  ev- 
ery one  of  them.  The  mere  fact  that  vessels  are  in  sight  of, 
or  near,  each  other,  navigating  the  same  waters,  does  not 
bring  these  enactments  into  play.  If  their  courses  are  par- 
allel, and  sufficiently  far  apart  to  clear  with  a  safe  margin, 
or  if  they  are  divergent,  there  is  no  need  for  rules  of  nav- 
igation, just  as  there  is  no  need  for  rules  of  construction 
when  the  language  is  too  plain  to  need  construction. 

Risk  of  Collision 

In  the  language  of  Justice  Clifford  in  the  Dexter,1  the 
rules  are  obligatory  if  the  vessels  are  approaching  in  such 
directions  as  involve  risk  of  collision  on  account  of  their 
proximity  from  the  time  the  necessity  for  precaution  be- 
gins. 

In  the  Milwaukee,2  it  is  said :  "Risk  of  collision  begins 
the  very  moment  when  the  two  vessels  have  approached 

§§  125-127.     i  23  Wall.  69,  23  L.  Ed.  84. 

2  1  Brown,  Adm.  313,  Fed.  Cas.  No.  9,626.  See,  also,  Philadelphia 
(D.  C.)  199  Fed.  299,  affirmed  207  Fed.  936,  125  C.  C.  A.  384.  There 
is  no  risk  of  collision  when  the  vessels  have  reached  an  understand- 


270  STEERING  AND   SAILING   RULES  (Ch.  12 

so  near  each  other,  and  upon  such  courses,  that,  by  depar- 
ture from  the  rules  of  navigation,  whether  from  want  of 
good  seamanship,  accident,  mistake,  misapprehension  of 
signals,  or  otherwise,  a  collision  might  be  brought  about. 
It  is  true  that  prima  facie  each  man  has  a  right  to  assume 
that  the  other  will  obey  the  law.  But  this  does  not  jus- 
tify either  in  shutting  his  eyes  to  what  the  other  may  ac- 
tually do,  or  in  omitting  to  do  what  he  can  to  avoid  an 
accident  made  imminent  by  the  acts  of  the  other.  I  say 
the  right  above  spoken  of  is  prima  facie  merely,  because  it 
is  well  known  that  departure  from  the  law  not  only  may, 
but  does,  take  place,  and  often.  Risk  of  collision  may  be 
said  to  begin  the  moment  the  two  vessels  have  approached 
each  other  so  near  that  a  collision  might  be  brought  about 
by  any  such  departure,  and  continues  up  to  the  moment 
when  they  have  so  far  progressed  that  no  such  result  can 
ensue." 

The  preliminary  to  the  steering  rules  gives  one  test  by 
which  to  determine  whether  risk  of  collision  exists.  It  is 
that  the  compass  bearing  of  the  approaching  vessel  does 
not  change.  If  their  courses  are  parallel,  a  sharp  angle  at 
a  distance  becomes  larger  as  they  approach,  and,  converse- 
ly, if  the  angle  remains  constant,  their  courses  must  be 
converging.3 

SAIL  VESSELS 

128.  Which  of  two  sailing  vessels  approaching  each  other 
so  as  to  involve  risk  of  collision  must  keep  out  of 
the  way  of  the  other  is  determined  by  their  respec- 
tive courses  and  situations,  with  reference  to  the 
direction  of  the  wind  and  their  relative  positions. 

ing  by  signals,  or  are  moving  on  courses  that  would  take  them  clear 
by  a  safe  margin.  Lake  Erie  Transp.  Co.  v.  Gilchrist  Transp.  Co., 
142  Fed.  89,  73  C.  C.  A.  313 ;    Libra,  6  P.  D.  139. 

s  George  W.  Roby,  111  Fed.  601,  49  C.  C.  A.  481 ;  President  Lin- 
coln, [1911]  P.  248. 


§  128)  SAIL  VESSELS  271 

Sail  vessels  approaching  each  other  so  as  to  involve  risk 
of  collision  regulate  their  movements  as  follows: 

(a)  A  vessel  which  is  running  free  shall  keep  out  of  the 
way  of  a  vessel  which  is  closehauled. 

This  is  because  she  is  more  manageable.  The  wind  is 
free  when  the  vessel  could  shape  her  course  still  further  to 
windward.     Thus : 


c 


A 


A  must  keep  out  of  the  way  of  B.4 

(b)  A  vessel  which  is  closehauled  on  the  port  tack  shall 
keep  out  of  the  way  of  a  vessel  which  is  closehauled  on  the 
starboard  tack.  When  a  vessel  is  on  the  port  tack,  her  sails 
swing  over  the  starboard  side,  the  wind  being  on  her  port 
side,  and  vice  versa.  Hence  this  rule  is  based  on  the  prin- 
ciple of  turn  to  the  right.  The  vessel  closehauled  on  the 
starboard  tack  cannot  turn  to  the  right,  as  the  wind  is  on 
that  side;  therefore  the  other  one  must.    Thus: 


§  12S.     •*  William  Churchill  (D.  C.)  103  Fed.  690 ;    Metamora,  144 
Fed.  936,  75  C.  C.  A.  576;    Martha  E.  Wallace  (D.  C.)  148  Fed.  94. 


272 


STEERING   AND   SAILING   RULES 


(Ch.  12 


A  must  keep  out  of  the  way.5 

(c)  When  both  are  running  free,  with  the  wind  on  differ- 
ent sides,  the  vessel  which  has  the  wind  on  the  port  side 
shall  keep  out  of  the  way  of  the  other.  This  also  springs 
from  the  rule  of  turn  to  the  right.    Thus: 


w 


A  must  keep  out  of  the  way,  because  the  wind  facilitates 
her  porting  or  turning  to  the  right,  and  interferes  with  the 
other's  doing  it.6 

We  will  see  later  on  that,  with  two  steamers  as  in  the  dia- 
gram, the  rule  is  the  opposite.  B  then  keeps  out  of  the  way, 
which  she  can  do  by  porting,  and  passing  astern,  as  a 
steamer  is  independent  of  the  wind. 

(d)  When  both  are  running  free  with  the  wind  on  the 
same  side,  the  vessel  which  is  to  the  windward  shall  keep 
out  of  the  way  of  the  vessel  which  is  to  the  leeward.    Thus : 


J> 


c  Ada  A.  Kennedy  (D.  C.)  33  Fed.  623 ;  Margaret  B.  Roper  (D.  C.) 
103  Fed.  8S6;  Id.,  Ill  Fed.  623,  49  C.  C.  A.  503;  Mary  Buhne,  118 
Fed.  1000,  55  C.  C.  A.  404. 

oRolf,  47  Fed.  220;  Id.,  50  Fed.  478,  1  C.  C.  A.  534;  Grace  Sey- 
mour (D.  C.)  63  Fed.  163. 


§  129)  STEAMERS  273 

A  keeps  out  of  the  way.  He  has  the  weather  gauge, 
about  which  we  read  so  much  in  naval  warfare  before  the 
innovation  of  steamers. 

This  rule  is  based  on  the  fact  that  the  vessel  to  wind- 
ward is  the  more  manageable  of  the  two.7 

(e)  A  vessel  which  has  the  wind  aft  shall  keep  out  of 
the  way  of  the  other  vessel :    Thus  : 


^D 


A  keeps  out  of  the  way  of  B.  The  reason  is  that  she  is 
more    manageable.8 

STEAMERS— THE  PORT-HELM  RULE 

129.  Steamers,  meeting  end  on,  port  their  helms,  and  pass 
to  the  right,  indicating  their  intention  by  one  whis- 
tle each.  But,  if  they  are  approaching  well  on  each 
other's  starboard  bow,  they  starboard,  and  pass 
to  the  left,  each  blowing  two  whistles. 

The  use  of  sail  vessels  is  becoming  more  restricted  every 
year,  and  a  vast  proportion  of  the  world's  commerce  is  now 
carried  in  steamers.  For  this  reason,  collisions  between 
steamers  constitute  the  bulk  of  the  cases  which  now  find 
their  way  into  the  courts. 

7  Nahor  (D.  C.)  9  Fed.  213. 

s  Mary  Augusta  (D.  C.)  55  Fed.  343 ;  Gov.  Ames,  1S7  Fed.  40,  109 
C.  C.  A.  94. 

Hughes, Adm. (2d  Ed.) — 18 


274  STEERING   AND   SAILING   RULES  (Ch.  12 

Article  18  embodies  the  first  and  most  important  rule  of 
those  governing  steamers.  It  says  that,  when  two  steam 
vessels  are  meeting  end  on,  or  nearly  end  on,  so  as  to  in- 
volve risk  of  collision,  each  shall  alter  her  course  to  star- 
board, so  that  each  may  pass  on  the  port  side  of  the  other. 
This  is  called  the  "port-helm  rule,"  as  it  takes  a  port  helm 
to  make  a  ship  move  to  starboard. 

Under  article  28,  the  steamer  indicates  her  intention  by 
blowing  one  short  blast  of  about  one  second's  duration, 
which  is  answered  by  the  other  steamer,  and  thus  an  under- 
standing is  established. 

Under  the  old  rules 'it  was  a  matter  of  some  doubt  how 
near  the  steamers  must  be  meeting  end  on  in  order  to  bring 
this  rule  into  play.  The  present  article  in  the  explanatory 
paragraph  following  the  navigation  rule  itself  expresses 
the  result  of  the  decisions.  If  they  are  moving  on  courses 
that,  if  held,  would  pass  clear,  then  there  is  no  risk  of  col- 
lision, and  no  rule  is  necessary.9  If,  however,  by  day  each 
sees  the  other's  masts  in  a  line  with  his  own,  or  nearly  so, 
or  if  by  night  each  sees  both  side  lights  of  the  other,  then 
they  are  moving  right  at  each  other,  and  each  must  port, 
and  signify  by  his  one  blast  that  he  is  porting.10 

If,  on  the  other  hand,  it  is  a  case  of  red  light  to  red  light, 
or  green  light  to  green  light,  the  rule  does  not  apply.11 

The  Lake  Rule  is  the  same,  except  that  it  has  no  explana- 
tory note  as  to  the  cases  to  which  the  rule  applies.  But,  as 
that  note  is  a  mere  affirmation  of  the  decisions,  the  courts 
would  probably  apply  it. 

Both  the  Lake  Rules  and  the  Mississippi  Valley  Rules, 
as  supplemented  by  the  Supervising  Inspectors'  Regula- 
tions, are  much  influenced  by  the  necessity  of  allowing  for 

§  129.  o  City  of  Macon,  92  Fed.  207,  34  C.  C.  A.  302 ;  Rend,  In  re 
(D.  C)  126  Fed.  564 ;    Esparta,  160  Fed.  289,  S7  C.  C.  A.  413. 

io  Thingvalla,  48  Fed.  764,  1  C.  C.  A.  87. 

«  Manitoba,  122  U/  S.  97,  7  Sup.  Ct.  115S,  30  L.  Ed.  1095;  Wrest- 
ler (D.  C.)  198  Fed.  583. 


§  129)  STEAMERS  275 

the  effect  of  the  current  on  ease  of  navigation.  It  is  a  gen- 
eral principle  that  a  boat  moving  against  the  current  is  more 
manageable  than  one  moving  with  it,  and  that  the  latter 
should  have  the  greater  rights.12 

The  Inland  Rules,  so  far  as  they  apply  to  steamers,  go 
into  much  more  detail  than  the  International  Rules.  The 
one  corresponding  to  the  port-helm  rule  expressly  provides 
that  vessels  meeting  so  far  on  each  other's  starboard  side 
as  not  to  be  considered  head  and  head  may  give  two  blasts, 
and  starboard.    The  port-helm  rule  may  be  illustrated  thus : 


sv 


C    A     V--^  ^ — <     B     *) 


\ 


The  starboard-helm  rule  may  be  illustrated  thus : 13 


c 


A 


The  Inland  Rules  contain  other  provisions  under  this  ar- 
ticle not  found  in  the  International  Rules.  For  instance, 
rule  3,  under  this  article,  provides  that,  if  either  of  two  ap- 
proaching vessels  fails  to  understand  the  course  or  inten- 


12  Galatea,  92  U.  S.  439,  23  L.  Ed.  727;  Jamestown  (D.  O.)  114 
Fed.  593 ;    Lake  Shore  (D.  C.)  201  Fed.  449;    Diana,  [1894]  A.  O.  625. 

is  James  Bowen,  10  Ben.  430,  Fed.  Cas.  No.  7,192;  Ogdensburgh, 
5  McLean,  622,  Fed.  Cas.  No.  17,158. 


276  STEERING  AND   SAILING   RULES  (Ch.  12 

tion  of  the  other,  he  shall  signify  it  by  giving  several  short 
and  rapid  blasts,  not  less  than  four,  of  his  steam  whistle.14 

These  are  called  the  "danger  signals,"  and  are  usually 
the  last  despairing  wail  before  the  crash.  No  such  provision 
is  contained  in  the  International  Rules,  though  it  is  a  well- 
established  practice  among  mariners.  Lake  Rule  26  pre- 
scribes substantially  the  same  rules  as  to  signaling  as  the 
above. 

Rule  5  of  the  Inland  Rules,  in  the  same  article,  requires 
steamers,  before  rounding  bends  in  a  river  or  channel  where 
the  view  is  cut  off,  to  blow  one  long  whistle  as  a  warning, 
and  requires  the  same  signal  from  vessels  leaving  a  dock. 
In  crowded  harbors,  or  much  frequented  channels  of  navi- 
gation, this  is  an  important  precaution,  and  many  cases 
have  arisen  under  it.15 

Rule  8  regulates  overtaking  vessels.  It  corresponds  to 
International  Rule  24,  and  will  be  discussed  in  that  connec- 
tion. 

Rule  9  of  the  same  article  provides  that  the  passing  sig- 
nals must  only  be  used  by  vessels  in  sight  of  each  other, 
and  able  to  ascertain  each  other's  course  or  position.  When 
this  is  impossible  from  fog  or  other  cause,  then  fog  signals 
are  used.  International  Rule  28  also  provides  that  these 
signals  are  only  to  be  used  by  vessels  in  sight  of  each  other. 
But  Lake  Rule  23  requires  them  to  be  given  "in  all  weath- 
ers," which  makes  it  strikingly  different  from  the  other 
rules. 

The  language  of  International  article  18  and  of  the  cor- 
responding article,  rule  1  of  the  Inland  Rules  is  quite  dif- 
ferent. 

i*Mahar  &  Burns  (D.  C.)  106  Fed.  86;  Virginian,  238  Fed.  156, 
151  C.  C.  A.  232. 

isPekin,  [1897]  A.  C.  532;  Gamma  (D.  C.)  103  Fed.  703;  Chicago 
(D.  C.)  101  Fed.  143;  Mourne,  [1901]  P.  68.  Winnie,  161  Fed.  10k 
88  C.  C.  A.  265;  Bouker  No.  2,  254  Fed.  579,  166  C.  C.  A.  137;  M. 
Moran,  254  Fed.  766,  166  C.  C.  A.  212. 


§  130)  STEAMERS  277 

The  International  Rule  requires  that  each  steamer  "shall 
alter  her  course  to  starboard,"  while  the  Inland  Rule  only 
requires  each  one  to  "pass  on  the  port  side  of  the  other." 

Article  28  of  the  International  Rules  requires  one  blast 
of  the  whistle  when  she  Ts  "directing  her  course  to  star- 
board" ;   that  is,  when  she  ports. 

On  the  other  hand,  article  18,  rule  1,  of  the  Inland  Rules, 
requires  one  blast  as  an  indication  of  the  intent  of  each 
vessel  to  "pass  on  the  port  side  of  the  other,"  which  may, 
but  does  not  necessarily,  involve  porting  the  helm.  Hence 
the  whistles  do  not  mean  the  same  thing  in  the  two  sets  of 
rules.16 

SAME— THE  CROSSING  RULE 

130.  Of  two  crossing  steamers,  the  one  having  the  other  on 
her  own  starboard  side  must  keep  out  of  the  way. 

Article  19  covers  the  case  when  two  steamers  are  cross- 
ing so  as  to  involve  risk  of  collision.  In  such  case  the  ves- 
sel which  has  the  other  on  her  starboard  side  must  keep 
out  of  the  way. 

Vessels  are  crossing  when  they  show  opposite  sides  to 
each  other,  and  are  so  nearly  even  that  one  cannot  be  con- 
sidered an  overtaking  vessel.    Thus : 


A  keeps  out  of  the  way. 

This  is  a  modification  of  the  port-helm  rule,  as  the  vessels 
ordinarily  pass  to  the  right  of  each  other.  The  cases  under 
this  rule  have  been  numerous.17 

is  Lisbonense,  53  Fed.  293,  3  C.  C.  A.  539. 

§  130.  "  Cayuga,  14  Wall.  275,  20  L.  Ed.  828;  E.  A.  Packer,  140 
U.  S.  360,  11  Sup.  Ct.  794,  35  L.  Ed.  453  ;    BREAKWATER,  155  U.  S. 


278  STEERING  AND  SAILING   RULES  (Ch.  12 

The  difficulty  in  applying-  this  rule  has  usually  arisen  in 
drawing  the  line  between  a  crossing  vessel  and  an  overtak- 
ing vessel.  In  the  above-cited  case  of  the  Cayuga,  the  Su- 
preme Court  made  it  a  crossing  case  where  one  vessel  was 
abaft  the  beam  of  the  other.  This  would  hardly  seem  to  be 
correct.  The  line  between  an  overtaking  vessel  and  a  cross- 
ing vessel  is  the  range  of  the  side  lights ;  that  is,  any  vessel 
two  points  or  less  abaft  the  beam  is  a  crossing  vessel,  any 
vessel  more  than  two  points  abaft  the  beam  is  an  overtaking 
vessel.18 

This  is  adopted  as  the  test  in  article  24,  and  therefore 
the  decision  in  the  Cayuga  Case  is  not  law  now,  if  it  ever 
was. 

In  a  winding  river  it  is  frequently  difficult  to  say  whether 
two  ships  are  crossing  or  not.  In  such  case  the  question  is 
determined,  not  by  the  accidental  bearing,  but  by  the  gen- 
eral channel  course.10 

Any  regulation  made  by  the  inspectors  contrary  to  this 
rule  is  invalid.20 

STEAM  AND  SAIL 

131.  A  steamer  must  keep  out  of  the  way  of  a  sail  vessel. 
In  doing  so  she  must  allow  the  sail  vessel  a  wide 
berth. 

Article  20  regulates  their  relations,  and  provides  that, 
when  a  steam  vessel  and  a  sail  vessel  are  proceeding  in  such 
directions  as  to  involve  risk  of  collision,  the  steam  vessel 
shall  keep  out  of  the  way  of  the  sailing  vessel. 

252,  15  Sup.  Ct.  99,  39  L.  Ed.  139 ;  Senator  Rice,  223  Fed.  524,  139  C. 
C.  A.  72 ;    Albano,  [1907]  A.  C.  193 ;    Fancy,  [1917]  P.  13. 

is  Auranla  (D.  C.)  20  Fed.  99. 

is  Velocity,  L.  R.  3  P.  C.  44;  Pekin,  [1S07J  A.  C.  532;  L.  C.  Waldo, 
100  Fed.  502,  40  C.  C.  A.  517. 

20  Pawnee  (D.  C.)  168  Fed.  371;  James  A.  Walsh  (D.  C.)  194 
Fed.  549. 


§  131)  STEAM    AND   SAIL  279 

This  rule  is  based  upon  the  greater  handiness  of  steam- 
ers, which  are  independent  of  wind  and  tide,  and  can  move 
backwards,  if  necessary.  It  often  looks  like  a  hard  rule,  as 
the  smallest  oyster  pungy  can  block  the  narrow  channel 
available  to  an  ocean  steamer.  As  it  is  based  upon  the 
greater  mobility  of  the  steamer,  the  courts  have  not  always 
enforced  it  rigidly  when  such  mobility  did  not  exist.  For 
instance,  a  tug  and  tow,  though,  .in  the  eye  of  the  law,  one 
vessel,  and  that  a  steamer,  are  often  less  manageable  than 
a  sail  vessel.  The  tug  cannot  back,  and,  if  her  tow  is  large 
or  unwieldy,  cannot  turn  around  except  slowly.  She  is  less 
manageable  in  fact  than  a  sail  vessel  with  a  free  wind,  and 
hence  the  courts  have  more  than  once  held  the  sail  vessel  in 
exceptional  circumstances  is  required  to  do  something.21 

The  question  would  turn  on  the  degree  of  her  embar- 
rassment, with  the  presumptions  against  the  tug,  for  ex- 
ceptions to  the  rules  must  be  introduced  with  great  cau- 
tion.22 

A  steamer  may  take  her  own  method  of  passing  a  sail 
vessel.  The  mere  approach  of  the  two  vessels  does  not 
bring  about  risk  of  collision.  The  steamer  may  assume 
that  the  sail  vessel  will  do  her  duty,  and  do  nothing  to  em- 
barrass her.  Hence  the  steamer  may  shape  her  course  so 
as  to  avoid  the  sail  vessel,  and  then  go  along  at  her  ordinary 
speed  under  the  assumption  that  the  sail  vessel  will  not  in- 
terfere with  her.  If  the  steamer's  course  is  such  that  it 
does  not  converge,  she  can  go  along  without  making  any 
change.23 

§  131.  2i  Marion  W.  Page  (D.  C)  36  Fed.  329;  Minnie  C.  Taylor 
(D.  C.)  52  Fed.  323 ;    Rose  Culkin  (D.  C.)  52  Fed.  328. 

22  Marguerite  (D.  C.)  87  Fed.  953;  Mary  A.  Bird  (D.  C.)  102  Fed. 
648 ;  Julia  A.  Trubee  (D.  G.)  136  Fed.  486 ;  Id.,  144  Fed.  1021,  74 
C.  C.  A.  680;  Warrior,  L.  R.  3  A.  &  E.  553;  American,  L.  R.  6 
P.  C.  127. 

2s  Scotia,  14  Wall.  181,  182,  20  L.  Ed.  822;  Free  State,  91  U.  S. 
200,  23  L.  Ed.  299 ;  Illinois,  103  U.  S.  298,  26  L.  Ed.  562 ;  Donnell 
v.  Boston  Towboat  Co.,  89  Fed.  757,  32  C.  C.  A.  331. 


280  STEERING  AND   SAILING   RULES  (Ch.  12 

This  rule  that  vessels  may  each  assume  that  the  other 
will  obey  the  law  is  one  of  the  most  important  in  the  law  of 
collision.  Were  it  otherwise,  and  were  vessels  required  to 
take  all  sorts  of  measures  to  keep  out  of  the  way  when  they 
are  not  in  each  other's  way,  navigation  would  be  impossible. 
It  is  like  the  land  negligence  rule  that  an  engineer  need 
not  stop  his  train  on  seeing  some  one  on  the  track,  but 
may  assume  that  he  will  have  intelligence  enough  to  get 
off.    Rules  more  rigid  would  break  up  traffic  by  land  or  sea. 

There  is,  however,  one  important  qualification  which 
must  be  borne  in  mind.  It  is  that  a  steamer  must  not  ap- 
proach so  near  a  sailing  vessel,  and  on  such  a  course,  as 
to  alarm  a  man  of  ordinary  skill  and  prudence.  If  the  man 
on  the  sailing  vessel  makes  an  improper  maneuver,  he  is  not 
responsible.  It  is  what  is  called  an  "error  in  extremis." 
It  is  difficult  to  lay  down  any  rule  defining  how  close  a 
steamer  may  run  to  a  sail  vessel  without  infringing  this 
rule,  as  it  depends  on  the  width  of  the  channel  and  many 
other  special  circumstances.  It  depends  largely  on  the 
course  she  is  steering.  If  that  course  is  parallel,  and  so  far 
off  that  she  is  showing  only  one  side  light  to  the  schooner, 
then  she  is  all  right;  for  any  mariner  of  average  intelli- 
gence knows  that  in  such  case  the  vessels  will  not  strike 
if  each  keeps  his  course,  and  therefore  has  no  right  to  lose 
his  head.  The  leading  case  on  the  subject  is  the  LU- 
CILLE.24 In  that  case  a  steamer  and  schooner  were  ap- 
proaching on  converging  courses  only  half  a  point  apart, 
so  that  they  would  have  come  within  thirty  yards  of  each 
other,  and  that  in  Chesapeake  Bay.  The  court  held  that 
this  was  too  close,  and  condemned  the  steamer.  The  re- 
port does  not  tell  how  the  lights  showed,  but,  if  their  cours- 
es were  only  half  a  point  apart,  this  would  make  each  see 
both  side  lights  of  the  other,  and  indicate  that  they  were 
coming  end  on.25 

24  15  Wall.  G79,  21  L.  Ed.  247. 

26  Fannie,  11  Wall.  238,  20  L.  Ed.  114. 


§  132)  PRIVILEGED   VESSELS  281 

Another  interesting  case  on  this  subject  is  the  Chatham.26 
There  a  schooner  going  down  the  Elizabeth  river  saw  an 
ocean  steamer  approaching,  which  showed  only  her  red 
light  (indicating  a  parallel  course)  until  50  or  75  yards  off, 
when  she  showed  both,  indicating  a  course  straight  for  the 
schooner.  This  alarmed  the  men  on  the  schooner,  and  they 
starboarded,  and  thereupon  the  vessels  struck.  The  court 
held  that  the  steamer,  having  plenty  of  room,  was  in  fault 
for  running  so  close,  and  that  the  act  of  the  schooner,  if 
wrong,  was  an  error  in  extremis.27 

The  test  laid  down  in  this  case  is  that  the  proximity  of 
the  steamer,  and  her  course  and  speed,  must  be  such  that  a 
mariner  of  ordinary  firmness  and  competent  knowledge  and 
skill  would  deem  it  necessary  to  alter  his  course  to  make 
the  vessels  pass  in  safety. 

If,  therefore,  the  steamer,  though  running  close,  shows 
by  her  lights  that  her  course  is  not  converging,  she  is  with- 
in the  law,  and  the  other  vessel  must  assume  that  she  will 
stay  within  the  law  and  navigate  accordingly.28 

PRIVILEGED  VESSELS 

132.  A  vessel  having  the  right  of  way  must  keep  her  course 
and  speed,  and  the  other  vessel  may  assume  that 
she  will  do  so. 

By  article  21,  when  by  any  of  these  rules  one  of  two  ves- 
sels is  to  keep  out  of  the  way,  the  other  must  keep  her 
course  and  speed.  This  renders  it  obligatory  on  the  vessel 
which  has  the  right  of  way  to  pursue  her  course  at  the 
speed  which  she  had  been  keeping  up  previously.    She  must 

2  6  52  Fed.  396,  3  C.  C.  A.  161. 

27  See,  as  further  illustrations,  E.  Luckenbach,  93  Fed.  S41,  35  C. 
C.  A.  628 ;  Paoli,  92  Fed.  944,  35  C.  C.  A.  97 ;  Delmar  (D.  C.)  125 
Fed.  130 ;   Bonnah  v.  Lakeside  S.  S.  Co.,  221  Fed.  40,  136  C.  C.  A.  566. 

2  8  Gate  City  (D.  C.)  90  Fed.  314.  See,  also,  Merchants'  &  Miners' 
Transp.  Co.  v.  Hopkins,  108  Fed.  890,  48  C.  C.  A.  128. 


STEERING  AND  SAILING  RULES  (Ch.  12 

rely  on  the  other  vessel  to  avoid  the  collision,  and  not 
embarrass  her  by  any  maneuver.  All  she  need  do  is  to  do 
nothing.  Then  the  other  vessel  knows  what  to  expect,  and 
navigates  accordingly. 

This  rule  applies  to  all  the  other  steering  and  sailing 
rules.  Under  it,  when  the  sail  vessel  running  free  keeps  out 
of  the  way,  the  closehauled  vessel  keeps  her  course.  Be- 
tween two  crossing  steamers,  when  the  one  on  the  left  keeps 
out  of  the  way,  the  other  keeps  her  course.  Between  a 
steamer  and  a  sail  vessel,  when  the  steamer  keeps  out  of  the 
way,  the  sail  vessel  keeps  its  course. 

The  principle  is  the  same  in  all  these  different  contingen- 
cies.   It  may  be  illustrated  by  one  or  two  decisions. 

In  the  BRITANNIA,29  which  was  a  collision  in  New 
York  harbor,  the  steamer  Beaconsfield  had  the  right  of  way 
over  the  Britannia,  under  the  crossing  rule.  The  Britan- 
nia failed  to  keep  out  of  the  way,  and  thereupon  the  Bea- 
consfield stopped  and  reversed.  The  Supreme  Court  held 
that  she  should  have  kept  her  course,  and  was  in  fault  for 
stopping  and  reversing.30 

In  the  BREAKWATER,31  which  also  was  a  crossing 
case,  the  privileged  vessel  did  keep  on,  and  the  court  held 
that  she  did  right. 

In  collisions  between  steam  and  sail  vessels  the  steamer's 
defense  is  usually  that  the  sail  vessel  changed  her  course.32 

Beating  out  a  tack  and  then  coming  about  where  neces- 


§  132.  29  153  u.  S.  130,  14  Sup.  Ct.  795,  38  L.  Ed.  660.  See,  also, 
Northfield,  154  U.  S.  629,  14  Sup.  Ct.  1184,  24  L.  Ed.  680;  Texas, 
19S  Fed.  482,  117  C.  C.  A.  566;  Howard  v.  The  City  of  New  York, 
211  Fed.  882,  128  G.  C.  A.  260;  Yang-Tsze  Ins.  Ass'n  v.  Fumess, 
Withy  &  Co.,  215  Fed.  859,  132  C.  C.  A.  201. 

30  New  York,  175  U.  S.  187,  20  Sup.  Ct.  67,  44  L.  Ed.  126;  Mexico, 
84  Fed.  504,  28  C.  C.  A.  472. 

3i  155  U.  S.  252,  15  Sup.  Ct.  99,  39  L.  Ed.  139. 

32  Adriatic,  107  U.  S.  512,  2  Sup.  Ct.  355,  27  L.  Ed.  497 ;  Marguerite 
(D.  C.)  87  Fed.  953 ;    Gate  City  (D.  C.)  90  Fed.  314. 


§  133)  CROSSING  AHEAD  283 

sary  is  not  a  change  of  course.33  Nor  are  slight  fluctua- 
tions in  the  general  course  of  the  sailing  vessel.34 

A  vessel  which  has  the  right  of  way  under  any  of  these 
rules  is  usually  designated  the  "privileged  vessel."  But 
keeping  the  course  is  an  obligation  as  well  as  a  privilege; 
and  such  vessel  cannot  change  her  course  on  a  mere  appre- 
hension of  danger.35 

The  corresponding  Mississippi  Valley  Rule  is  rule  23 
(Rev.  St.  §  4233),  which  says  that  the  privileged  vessel 
must  keep  her  course,  and  says  nothing  as  to  speed.  It  is 
likely,  however,  that  the  courts  will  hold  it  to  mean  sub- 
stantially what  the  others  mean.  In  fact,  under  the  strong 
intimation  of  the  Supreme  Court  in  the  BRITANNIA,  su- 
pra, it  certainly  means  that  she  must  keep  some  speed, 
even  if  it  does  not  mean  that  she  must  keep  her  previous 
speed.88 

CROSSING  AHEAD 

133.  The  burdened  vessel  must  avoid  crossing  ahead  of 
the  other,  if  practicable. 

Rule  22  requires  every  vessel  which  is  directed  to  keep 
out  of  the  way  to  avoid  crossing  ahead,  if  circumstances 
admit.  This  was  long  a  practice  of  seamen,  "Never  cross 
the  bow  when  you  can  go  astern,"  but  was  for  the  first  time 
made  a  rule  in  the  rules  of  1890.  The  Inland  Rules  have 
the  same  provision,  but  not  the  Lake  Rules  or  Mississippi 
Valley  Rules.37 

S3  Empire  State,  1  Ben.  57,  Fed.  Cas.  No.  17,586;  Coe  F.  Young, 
49  Fed.  167,  1  C.  C.  A.  219. 

34  Emily  B.  Maxwell,  96  Fed.  999,  37  C.  C.  A.  658;  Columbian,  100 
Fed.  991,  41  C.  C.  A.  150. 

35  General  U.  S.  Grant,  6  Ben.  465,  Fed.  Cas.  No.  5,320;  Europa 
(D.  C.)  116  Fed.  696. 

se  Delaware,  161  U.  S.  459,  16  Sup.  Ct.  516,  40  L.  Ed.  771. 
3T  As  illustrations  of  this  rule,  see  Zouave,  98  Fed.  747,  39  C.  C.  A. 
258 ;    Excelsior  (D.  C.)  102  Fed.  652 ;    Robert  Graham  Dun,  107  Fed. 


284  STEERING  AND  SAILING   RULES  (Ch.  12 


THE  STOP  AND  BACK  RULE 

134.  The  burdened  steamer  must  slacken,  stop,  or  reverse, 
if  necessary,  to  avoid  collision. 

Article  23  provides  that  every  steam  vessel  which  is  di- 
rected by  those  rules  to  keep  out  of  the  way  of  another 
vessel,  shall,  on  approaching  her,  if  necessary,  slacken  her 
speed,  or  stop  or  reverse. 

This  rule  is  radically  changed  from  its  old  form.  Until 
the  revision  of  1890,  it  required  every  steam  vessel,  when 
approaching  another  vessel  so  as  to  involve  risk  of  colli- 
sion, whether  the  other  had  the  right  of  way  or  not,  to  re- 
sort to  these  maneuvers.  The  courts,  however,  had  settled 
that  this  was  not  necessary  as  long  as  the  vessels  were  mov- 
ing on  such  courses  that,  if  each  one  did  his  duty,  as  could 
be  assumed  by  each,  no  collision  would  happen.  These  au- 
thorities have  been  cited  in  another  connection.  The  pres- 
ent rules  require  this  maneuver  only  of  the  burdened  ves- 
sel, and  require  the  privileged  vessel  not  only  to  keep  her 
course,  but  her  speed  as  well. 

The  Mississippi  Valley  Rules  still  have  the  rule  in  its 
old  form,  applying  to  all  steamers,  and  not  simply  those  re- 
quired to  keep  out  of  the  way.  This  great  change  in  the 
rule  renders  it  necessary  to  be  circumspect  in  citing  cases 
arising  before  the  change,  as  many  vessels  might  have  been 
obliged  to  stop  and  back  then  which  would  not  be  required 
to  do  so  now.  A  privileged  vessel,  which  stops  and  backs 
now,  unless  at  the  last  moment  as  a  desperate  effort  to 
avert  certain  collision,  would  commit  a  fault,  instead  of 
obeying  the  law.38 

994,  47  C.  C.  A.  120 ;   Thomas  B.  Garland  (D.  C.)  110  Fed.  6S7 ;   Ash- 
ton,  [1905]  P.  21. 

§  134.     38  Mary  Powell,  92  Fed.  40S,  34  G.  C.  A.  421. 


§   134)  THE   STOP  AND   BACK   RULE  285 

Under  article  28  of  the  International  Rules  and  Inland 
Rules,  the  signal  of  three  short  blasts  is  required  to  be  giv- 
en as  a  notification  of  this  action.  They  mean,  "My  en- 
gines are  at  full  speed  astern."  In  the  other  rules  three 
blasts  do  not  necessarily  mean  this.39 

The  rule  has  not  been  carried  so  far  as  to  require  stop- 
ping or  reversing  on  the  mere  approach  of  two  steamers, 
unless  there  is  a  continuous  converging  of  their  courses 
and  increasing  possibility  of  collision.  If  they  can  clear 
without  difficulty  by  the  use  of  their  helms,  that  is  suffi- 
cient.40 

But  where  the  best  chance  of  avoiding  collision  is  to 
keep  on,  it  will  not  be  a  fault  to  do  so.41 

And  it  is  not  required  the  moment  danger  arises.  A 
mariner  is  not  supposed  to  be  a  lightning  calculator,  and 
is  allowed  a  brief  space  for  reflection.42 

The  expression  "if  necessary"  does  not  mean  essential, 
but  prudent  or  expedient,  to  the  mind  of  a  mariner  of  skill.43 

The  effect  of  the  screw  on  the  direction  of  a  ship's  move- 
ment should  be  thoroughly  understood. 

The  screws  of  most  ships  are  right-handed;  that  is,  they 
turn  when  going  forward  in  the  direction  of  the  hands  of  a 
clock.  The  effect  of  this  is  a  tendency  to  pull  the  ship's 
stern  to  the  right,  which  swings  her  bow  to  the  left.  Hence, 
independent  of  wind,  tide,  or  rudder,  a  propeller  ship  mov- 
ing forward  would  gradually  describe  a  circle  to  the  left. 

When  a  vessel  backs,  her  screw  turns  in  the  contrary 
direction,  arid  that  tends  to  pull  her  stern  to  the  left  and  to 
throw  her  bow  to  the  right.     Hence  reversing,  if  there  is 

39  As  to  the  application  of  this  rule,  see  Oporto,  [1S97]  P.  249; 
Victory,  168  U.  S.  410,  18  Sup.  Ct.  149,  42  L.  Ed.  519;  New  York, 
175  U.  S.  187,  20  Sup.  Ct.  67,  44  L.  Ed.  126 ;    Mourne,  [1901]  P.  68. 

40  Ante,  p.  269;  Jesniond,  L.  R.  4  P.  C.  1;    Rhondda,  8  A.  C.  549. 
4i  Benares,  9  P.  D.  16;    Mourne,  [1901]  P.  68. 

42  Emmy  Haase,  9  P.  D.  81 ;   Ngapoota,  [1S97]  A.  C.  391. 
4  3  Ceto,  14  A.  C.  670,  6S9. 


286  STEERING   AND  SAILING   RULES  (Ch.  12 

not  sufficient  space  to  kill  her  headway,  may  throw  her 
towards  the  ship  which  she  is  trying  to  avoid.4* 


OVERTAKING  VESSELS 
135.  The  overtaking  steamer  must  keep  out  of  the  way. 

Article  24  provides  that,  notwithstanding  anything  con- 
tained in  these  rules,  any  vessel  overtaking  any  other  ves- 
sel shall  keep  out  of  the  way  of  the  overtaken  vessel. 

Under  the  crossing  rule,  the  test  between  an  overtaking 
and  a  crossing  vessel  has  been  shown.  This  rule  adopts 
that  test,  and  makes  any  vessel  more  than  two  points  abaft 
the  beam  an  overtaking  vessel,  and  solves  all  cases  of 
doubt  by  treating  them  as  overtaking  vessels. 

The  only  signals  prescribed  by  the  International  Rules 
for  this  case  are  the  general  ones  contained  in  article  28, 
one  blast  meaning  that  the  vessel  is  directing  her  course 
to  starboard,  and  two  that  she  is  directing  her  course  to 
port.  But  the  Inland  Rules  in  article  18,  rule  8,  prescribe 
special  rules  for  the  case.  They  require  the  last  vessel  to 
blow  one  blast  if  she  wishes  to  pass  to  the  right,  and  the 
forward  one  to  answer  it ;  two  if  she  wishes  to  pass  to  the 
left,  and  the  forward  one  to  answer  it.  If  the  pilot  of  the 
front  steamer  thinks  that  they  cannot  safely  pass,  he  an- 
swers the  signal  of  the  other  steamer  by  several  short 
blasts,  whereupon  the  second  steamer  must  wait  until  the 
forward  steamer  gives  the  assenting  signal ;  and  the  for- 
ward steamer  must  not  crowd  upon  the  overtaking  one. 
The  Lake  Rules  and  Mississippi  Valley  Rules  have  sub- 
stantially the  same  provisions  on  the  subject.  The  over- 
taking vessel  must  pass  at  a  sufficient  distance  to  avoid  dan- 

**  For  a  fuller  explanation  of  this,  see  Marsden  on  Collision,  418- 
416 ;  Aurania  (D.  C.)  29  Fed.  98,  121 ;  Normandie  (D.  C.)  43  Fed. 
151,  159. 


§135)  OVERTAKING  VESSELS  287 

ger  of  suction.  She  is  in  fault  if  collision  is  caused  by  her 
running  too  close.45 

While  the  overtaken  steamer  must  keep  her  general 
course,  and  the  second  steamer  may  so  assume,  yet  if  the 
first  has  exchanged  signals  with  another  boat  which  she  is 
meeting,  and  is  changing  her  course  to  conform  thereto, 
the  steamer  overtaking  her  must  take  note  of  this  change, 
and  regulate  her  navigation  accordingly.46 

The  overtaking  steamer  may  assume  that  the  first  steam- 
er will  navigate  according  to  the  rule.47 

The  overtaking  steamer,  as  she  is  passing,  must  not  try 
to  cut  across  in  front  too  quickly.  If  she  does,  and  ren- 
ders collision  inevitable,  the  other  should  back;  not  by 
virtue  of  the  stop  and  back  rule,  as  that  does  not  apply  to 
her,  being  the  privileged  vessel,  but  by  virtue  of  the  gen- 
eral prudential  rule,48  or  the  precaution  rule.49 

On  the  other  hand,  the  overtaken  vessel  must  keep  her 
course  and  speed,  and  must  not  crowd  on  the  overtaking 
vessel  or  hamper  her  movements.50 

If  she  willfully  obstructs  the  overtaking  vessel,  she  will 
be  held  solely  in  fault,  though  there  may  have  been  some 
carelessness  on  the  part  of  the  overtaking  vessel.61 

§  135.  45  City  of  Brockton  (O.  C.)  42  Fed.  928 ;  Ohio,  91  Fed.  547, 
33  C.  C.  A.  667 ;  Queen  City  (D.  C.)  189  Fed.  653 ;  Cambria  S.  S.  Co. 
v.  Pittsburgh  S.  S.  Co.,  212  Fed.  674,  129  C.  C.  A.  210,  51  L.  R.  A. 
(N.  S.)  966. 

4  6  Whiteash  (D.  C.)  64  Fed.  893. 

47  Long  Island  R.  Co.  v.  Killien,  67  Fed.  365,  14  C.  C.  A.  418. 

48  int.  art.  27. 

49  Int.  art.  29 ;    Willkommen  (D.  C.)  103  Fed.  699. 

bo  J.  G.  Gilchrist,  183  Fed.  105,  105  C.  C.  A.  397 ;  Spencer  v.  Dalles 
P.  &  A.  Navigation  Co.,  188  Fed.  865,  110  C.  C.  A.  499;  James  L. 
Morgan,  225  Fed.  34,  140  C.  C.  A.  360. 

6i  Gaffner  v.  Pigott,  116  Fed.  4S6,  54  C.  C.  A.  641. 


288  RULES  AS  TO  NARROW   CHANNELS,  ETC.  (Ch.  13 


CHAPTER  XIII 

RULES  AS  TO  NARROW  CHANNELS,  SPECIAL  CIRCUMSTANC- 
ES, AND  GENERAL  PRECAUTIONS 

136.  The  Narrow  Channel  Rule. 

137.  The  General  Prudential  Rule,  or  Special  Circumstance  Rule. 

138.  Sound  Signals. 

139.  The  General  Precaution  Rule. 

140.  Lookouts. 

141.  Anchored  Vessels. 

142.  Wrecks. 

143.  The  Stand-by  Act. 


THE  NARROW  CHANNEL  RULE 

136.  In  narrow  channels  each  steamer  must  keep  to  the 
right-hand  side. 

Article  25  provides  that  in  narrow  channels  every  steam 
vessel  shall,  when  it  is  safe  and  practicable,  keep  to  that 
side  of  the  fairway  or  mid-channel  which  lies  on  the  star- 
board side  of  such  vessel. 

This  is  really  a  branch  of  the  port-helm  rule.  The  latter 
rule  applies  when  the  vessels  are  meeting  end  on,  no  mat- 
ter whether  they  are  in  a  harbor  or  a  narrow  channel,  no 
matter  whether  they  are  following  a  channel  or  crossing  it. 
The  starboard-hand  rule  emphasizes  this  duty  as  to  narrow 
channels.  It  means  that  each  must  keep  along  its  own 
right-hand  side,  no  matter  how  the  relative  bearings  may  be 
from  sinuosities  or  other  causes.1 

This  rule  was  added  to  the  inland  rules  by  the  act  of 
June  7,  1897,  though  it  had  been  in  the  International  Rules 

§  136.  i  VICTORY,  168  U.  S.  410,  18  Sup.  Ct.  149,  42  L.  Ed.  519 ; 
Arrow,  214  Fed.  743,  131  C.  C.  A.  49 ;  Hokendaqua,  251  Fed.  562,  163 
C.  C.  A.  556. 


§  136)  THE    NARROW   CHANNEL   RULE  289 

since  the  revision  of  1885.  The  courts,  however,  are  rigid 
in  enforcing  it. 

The  Spearman  -  arose  on  the  Danube,  under  a  local  rule 
substantially  similar.  The  descending  vessel  took  the  left 
bank,  and  was  held  in  fault  for  a  collision  with  an  ascend- 
ing vessel,  though  the  absence  of  lights  on  the  latter  might 
have  contributed  to  the  accident. 

The  Pekin  3  was  a  collision  case  in  the  river  Whang  Poo, 
in  China,  at  a  point  where  there  was  a  sharp  bend.  The 
Normandie,  in  descending,  kept  to  the  starboard  side,  and 
the  Pekin  was  ascending.  This  threw  the  Pekin  on  the 
Normandie's  starboard  bow  on  account  of  the  bend,  and 
she  therefore  claimed  that  it  was  a  crossing  case,  and  that  un- 
der rule  19  she  had  the  right  of  way.  The  House  of  Lords, 
however,  held  that  the  course  must  be  judged,  not  by  the 
accidental  bearing  at  a  bend,  but  by  the  general  channel 
course,  and  that  the  Pekin  was  to  blame  for  cutting  across 
to  the  Normandie's  side. 

Another  interesting  English  case  in  which  the  rule  was 
applied  was  the  Oporto.4 

In  the  Spiegel,5  Judge  Coxe  applied  the  rule  to  a  colli- 
sion on  the  Erie  Canal  at  night,  placing  the  responsibility 
on  a  boat  which  was  on  the  wrong  side. 

The  rule  applies  in  fogs  as  well  as  in  clear  weather.6 

What  Constitutes  a  Narrow  Channel 

This  is  not  easy  to  define.  In  the  leading  case  of  the 
RHONDDA,7  the  House  of  Lords  held  that  the  Straits  of 
Messina  were  included  in  the  term,  and  in  the  Leverington  8 

2  10  A.  C.  276. 

s  [1S97]  A.  C.  532. 

4  [1S97]  P.  249. 

»  (D.  C.)  84  Fed.  1002. 

e  Yarmouth  (D.  C.)  100  Fed.  667;  Newport  News,  105  Fed.  3S9, 
44  C.  C,  A.  541. 

7  8  A.  C.  549. 

s  11  P.  D.  117.  Other  illustrations  from  the  English  decisions : 
Clydach,  5  Asp.  M.  C.  336  (Falmouth  entrance) ;  Whitlieburn,  9  Asp. 
Httgiies.Adm.(2d  Ed.) — 19 


290  RULES  AS   TO  NARROW   CHANNELS,  ETC.  (Ch.  13 

it  was  held  that  the  Cardiff  Drain,  where  it  joins  the  en- 
trance channel  to  the  Roath  Basin,  came  within  the  desig- 
nation. 

In  Occidental  &  O.  S.  S.  Co.  v.  Smith,9  it  was  held  to  in- 
clude the  entrance  to  San  Francisco  harbor.  So  with  Prov- 
idence river.10 

As  the  only  object  of  the  rule  is  to  avoid  collision,  the 
common  sense  of  the  matter  would  seem  to  be  that,  as  it 
does  not  apply  to  all  channels,  but  only  to  narrow  channels, 
a  channel  is  not  narrow,  in  the  sense  of  the  term,  unless 
vessels  approaching  each  other  in  it  are  compelled  to  ap- 
proach on  such  lines  as  would  involve  "risk  of  collision"  in 
the  sense  of  the  navigation  rules.  If  it  is  wide  enough  to 
permit  two  steamers  to  pass  at  a  safe  distance  without  the 
necessity  of  exchanging  signals,  the  rule  would  not  apply  ; 
and  it  would  be  idle  to  require  two  steamers  to  cross  to  the 
other  side.  But  if  it  is  so  narrow  by  nature,  or  so  narrowed 
by  anchored  vessels  or  other  causes,  as  to  bring  approaching 
steamers  on  lines  in  dangerous  proximity,  and  require  inter- 
change of  signals,  then  the  rule  would  apply. 

It  does  not  apply  to  harbor  navigation.  Steamers  mov- 
ing about  promiscuously  in  harbors,  often  from  one  point 
to  another  on  the  same  side,  are  not  expected  to  cross  back- 
wards and  forwards  in  the  attempt  to  observe  the  rule.31 

It  will  be  observed  that  this  rule  is  very  cautiously  word- 

M.  C.  154  (Scheldt  at  Antwerp);  Glengariff,  [1905]  P.  106  (Queens- 
town  harbor  entrance) :  Kaiser  Wilhelm  der  Grosse,  [1907]  P.  259 
(Cherbourg  harbor  entrance). 

»  74  Fed.  261,  20  C.  C.  A.  419. 

io  Berkshire,  74  Fed.  906.  21  C.  C.  A.  169.  Other  illustrations 
from  American  decisions:  Acilia  (D.  C.)  108  Fed.  97."» ;  Id.,  120  Fed. 
135,  56  C.  C.  A.  605  (Brewerton  channel);  Maling  (D.  C.)  110  Fed. 
227,  237  (Cherry  Island  channel  in  the  Delaware);  Dauntless  (D. 
C.)  121  Fed.  420;  Id.,  129  Fed.  715,  64  C.  C.  A.  243  (Mokelumne 
river) ;  Vera  (D.  C.)  224  Fed.  998 ;  Id.,  220  Fed.  369,  141  C.  C.  A.  199 
(President  Roads). 

ii  Islander,  151'  Fed.  385,  81  C.  C.  A.  511;  No.  4,  161  Fed.  847, 
8S  C.  C.  A.  665;    Wr<  stler,  232  Fed.  448,  146  C.  C.  A.  442. 


§  137)  THE   GENERAL  PRUDENTIAL   RULE  291 

ed.  It  only  applies  when  it  is  "safe  and  practicable,"  and 
it  only  requires  the  "ship  to  keep  to  the  right  of  the  fair- 
way or  mid-channel."  This  means  the  water  available  for 
navigation  at  the  time.  For  instance,  if  half  of  a  narrow- 
channel  was  obstructed  by  anchored  vessels,  the  "fairway 
or  mid-channel"  would  mean  the  part  still  unobstructed,  and 
require  the  vessel  to  keep  on  her  half  of  the  channel  still 
remaining,  though  that  was  not  on  the  starboard  side  of 
the  ordinary  navigable  channel.  It  would  not  be  "safe  and 
practicable"  to  do  otherwise.12 

Neither  the  Lake  Rules  nor  the  Mississippi  Valley  Rules 
contain  this  provision,  but  they  have  their  own  rules  for 
narrow  channels,  the  substance  of  which  is  that  the  boat 
with  the  current  has  the  right  of  way.  In  the  Lake  Rules 
she  must  give  the  first  signal,  but  in  the  Mississippi  Valley 
Rules  the  ascending  steamer  does  so. 

But  under  the  Mississippi  Valley  Rules  the  courts  re- 
quire each  boat  to  keep  to  the  right  side  as  a  matter  of 
careful  navigation.13 

THE  GENERAL  PRUDENTIAL  RULE,  OR  SPECIAL 
CIRCUMSTANCE  RULE 

137.  The  general  prudential  rule,  or  special  circumstance 
rule,  allows  departure  from  the  other  rules,  but 
only  in  extreme  cases. 

Article  27  provides  that  in  obeying  and  construing  these 
rules  due  regard  shall  be  had  to  all  dangers  of  navigation 
and  collision,  and  to  any  special  circumstances  which  may 

12  On  the  meaning  of  these  words,  see  Smith  v.  Voss,  2  Hurl.  &  N. 
97:  RHONDDA,  8  A.  C.  549;  Clydach,  5  Asp.  336;  Leverington,  11 
P.  D.  117;  Oliver  (D.  C.)  22  Fed.  849;  Blue  Bell,  [1895]  P.  242; 
Glengariff ,  [1905]  P.  106 ;  Clutha  Boat  147,  [1909]  P.  36 ;  Turquoise, 
[1908]  P.  148. 

is  Jakobsen  v.  Springer,  S7  Fed.  948,  31  C.  C.  A.  315;  Albert 
Dumois,  177  U.  S.  240.  20  Sup.  Ct.  595,  44  L.  Ed.  751. 


292  RULES  AS   TO   NARROW   CHANNELS,  ETC.  (Ch.  13 

render  a  departure  from  the  above  necessary  in  order  to 
avoid  immediate  danger. 

In  the  multitude  of  possible  situations  in  which  vessels 
may  find  themselves  in  relation  to  each  other,  there  are  nec- 
essarily occasional  cases  in  which  obstinate  adherence  to 
the  rule  would  cause  collision,  when  disregard  of  it  might 
prevent  it.  This  rule  is  made  for  such  cases.  These  excep- 
tional circumstances  usually  arise  at  the  last  moment,  so 
that  this  rule  has  well  been  designated  the  rule  of  "sauve 
qui  peut."  It  cannot  be  used  to  justify  violations  of  the 
other  rules,  or  to  operate  as  a  repeal  of  them.  The  certain- 
ty resulting  from  the  enforcement  of  established  rules  is 
too  important  to  be  jeopardized  by  exceptional  cases.  Any 
rule  of  law,  no  matter  how  beneficial  in  its  general  opera- 
tion, may  work  occasional  hardship.  Hence  the  courts  lean 
in  favor  of  applying  the  regular  rules,  and  permit  departure 
from  them  only  in  the  plainest  cases. 

The  principle  which  governs  such  cases  existed  and  was 
applied  long  before  it  was  enacted  in  the  present  rule.  It  is 
well  expressed  by  Dr.  Lushington  in  the  John  Buddie,14 
where  he  said :  "All  rules  are  framed  for  the  benefit  of 
ships  navigating  the  seas,  and,  no  doubt,  circumstances 
will  arise  in  which  it  would  be  perfect  folly  to  attempt  to 
carry  into  execution  every  rule,  however  wisely  framed.  It 
is  at  the  same  time  of  the  greatest  possible  importance  to 
adhere  as  closely  as  possible  to  established  rules,  and  never 
to  allow  a  deviation  from  them  unless  the  circumstances 
which  are  alleged  to  have  rendered  such  deviation  necessary 
are  most  distinctly  proved  and  established ;  otherwise  ves- 
sels would  always  be  in  doubt  and  doing  wrong." 

In  the  Khedive,15  two  vessels  were  approaching  each  oth- 
er green  light  to  green  light,  when  suddenly  one  ported, 
thereby   establishing   risk   of    collision.      The   captain    of    the 

§  137.     i<5  Notes  of  Cases,  387. 

15  5  A.  C.  870.  For  a  somewhat  similar  rase,  see  the  Kingston 
(D.  C.)  1?::  Fed.  902. 


§  137)  THE   GENERAL  PRUDENTIAL   RULE  293 

other  starboarded,  under  the  belief  that  this  would  bring 
the  vessels  parallel,  and  at  least  ease  the  blow.  He  did  not 
reverse,  as  required  by  rule  23  as  then  worded.  It  was  con- 
tended for  him  that  he  was  justified  under  the  special  cir- 
cumstances, hut  the  House  of  Lords  held  that  the  stop  and 
back  rule  governed,  and  that  this  rule  could  not  be  invoked 
to  excuse  noncompliance  with  the  stop  and  back  rule. 

In  the  Benares,16  a  vessel  saw  a  green  light  a  little  on  her 
port  bow.  When  they  came  close  together,  she  saw  the 
port  side,  but  no  red  light  where  it  should  have  been.  She 
thereupon  starboarded,  and  went  full  speed  ahead,  instead 
of  backing  and  reversing.  The  court  held  that  it  was  an 
exceptional  case,  governed  by  the  general  prudential  rule, 
and  that  she  had  done  right;  and  that  a  departure  is  justi- 
fied when  it  is  "the  one  chance  still  left  of  avoiding  danger 
which  otherwise  was  inevitable."  17 

The  American  courts  have  been  equally  reluctant  to  ad- 
mit exceptions.  In  the  Clara  Davidson,18  the  court  said : 
"But  I  do  not  find  myself  at  liberty  to  ignore  the  inquiry 
whether  a  statutory  rule  of  navigation  was  violated  by  the 
schooner.  Those  rules  are  the  law  of  laws  in  cases  of  col- 
lision. They  admit  of  no  option  or  choice.  No  navigator  is 
at  liberty  to  set  up  his  discretion  against  them.  If  these 
rules  were  subject  to  the  caprice  or  election  of  masters  and 
pilots,  they  would  be  not  only  useless,  but  worse  than  use- 
less. These  rules  are  imperative.  They  yield  to  necessity, 
indeed,  but  only  to  actual  and  obvious  necessity.  It  is  not 
stating  the  principle  too  strongly  to  say  that  nothing  but 
imperious  necessity,  or  some  overpowering  vis  major,  will 
excuse  a  sail  vessel  in  changing  her  course  when  in  the 
presence  of  a  steamer  in  motion ;  that  is,  obeying  the  duty 
resting  upon  it  or  keeping  out  of  the  way.  If  the  statutory 
rules  of  navigation  were  only  optionally  binding,  we  should 

ifi  9  P.  D.  16.     See,  also,  Allan  &  Flora,  14  L.  T.  (N.  S.)  860. 
17  See,  also,  Mourne,  [1901]  P.  68;    Test,  5  Notes  of  Cases,  276. 
is  (D.  C.)  24  Fed.  763. 


294  RULES    AS    TO   NARROW   CHANNELS,  ETC.  (Ctl.  13 

be  launched  upon  an  unbounded  sea  of  inquiry  in  every  col- 
lision case,  without  rudder  or  compass,  and  be  at  the  mercy 
of  all  the  fogs  and  mists  that  would  be  made  to  envelop  the 
plainest  case,  not  only  from  conflicting  evidence  as  to  the 
facts,  but  from  the  hopelessly  conflicting  speculations  and 
hypotheses  of  witnesses  and  experts  as  to  what  ought  to 
or  might  have  been  done  before,  during,  and  after  the  event. 
The  statutory  regulations  that  have  been  wisely  and  char- 
itably devised  for  the  governance  of  mariners  furnish  an 
admirable  chart  by  which  the  courts  may  disentangle  them- 
selves from  conflicting  testimony  and  speculation,  and  ar- 
rive at  just  conclusions  in  collision  cases." 

In  the  BREAKWATER,19  where,  in  a  crossing  case, 
the  privileged  vessel  kept  her  course  and  speed,  and  was 
attacked  because  she  did  not  reverse,  the  court  said : 
"Where  rules  of  this  description  are  adopted  for  the  guid- 
ance of  seamen  who  are  unlearned  in  the  law,  and  unaccus- 
tomed to  nice  distinctions,  exceptions  should  be  admitted 
with  great  caution,  and  only  when  imperatively  required 
by  the  special  circumstances  mentioned  in  rule  24,  which 
mav  exist  in  any  particular  case,  rendering  a  departure  from 
them  necessary  in  order  to  avoid  immediate  danger.  The 
moment  the  observance  or  nonobservance  of  a  rule  becomes 
a  matter  of  doubt  or  discretion,  there  is  manifest  danger, 
for  the  judgment  of  one  pilot  may  lead  him  to  observe  the 
rule,  while  that  of  the  other  may  lead  him  to  disregard  it. 
The  theory  of  the  claimant  that  a  vessel  at  rest  has  no  right 
to  start  from  her  wharf  in  sight  of  an  approaching  vessel, 
and  thereby  impose  upon  the  latter  the  obligation  to  avoid 
her.  is  manifestly  untenable,  and  would  impose  a  wholly 
unnecessary  burden  upon  the  navigation  of  a  groat  port 
like  that  of  New  York.  In  the  particular  case,  too,  the  sig- 
nals exchanged  between  the  steamers  indicated  clearly  that 
the  Breakwater  accepted  the  situation  and  the  obligation 

i»155  U.  S.  252,  15  Sup.  Ct.  00,  39  L.  Ed.  139. 


§  137)         THE  GENERAL  PRUDENTIAL  RULE  295 

imposed  upon  her  by  the  starboard-hand  rule,  and  was 
bound  to  take  prompt  measures  to  discharge  herself  of  such 
obligation." 

In  the  Non  Pareille,20  the  court  said:  "There  is  no  such 
thing  as  a  right  of  way  to  run  into  unnecessary  collision. 
The  rules  of  navigation  are  for  the  purpose  of  avoiding  col- 
lision, not  to  justify  either  vessel  incurring  a  collision  un- 
necessarily. The  supreme  duty  is  to  keep  out  of  collision. 
The  duties  of  each  vessel  are  defined  with  reference  to  that 
object,  and,  in  the  presence  of  immediate  danger,  both,  un- 
der rule  24,  are  bound  to  give  way,  and  to  depart  from  the 
usual  rule,  when  adherence  to  that  rule  would  inevitably 
bring  on  collision,  which  a  departure  from  the  rules  would 
plainly  avoid." 

It  is  plain,  therefore,  that  he  who  disregards  the  regular 
rules,  and  appeals  to  this  one,  shoulders  a  heavy  burden. 
He  is  like  the  whist  player  who  fails  to  return  his  partner's 
trump  lead.  He  may  be  able  to  justify  it,  but  explanations 
are  in  order.21 

As  vessels  maneuvering  around  slips  are  not  on  regular 
>urses,  their  navigation  is  usually  governed  by  this  rule.22 
Collisions  due  to  extinguishing  the  lights  of  vessels  under 
governmental  orders  during  war  come  under  this  rule.23 

20  (D.  C.)  33  Fed.  524.  See,  also,  Hercules,  51  Fed.  452 ;  Mauch 
Chunk,  154  Fed.  182,  S3  C.  C.  A.  276 ;  John  I.  Clark  (D.  C.)  199  Fed. 
981. 

siJakobsen  v.  Springer,  87  Fed.  948,  31  C.  C.  A.  315;  Albert 
Dumois,  177  IT.  S.  240,  20  Sup.  Ct.  595,  44  L.  Ed.  751;  Concordia, 
L.  R.  1  A.  &  E.  93. 

22  Transfer  No.  17,  254  Fed.  673,  166  C.  C.  A.  171;  M.  Moran,  254 
Fed.  766,  166  C.  C.  A.  212. 

23  Algol,  [1918]  P.  7;    Hydra,  [1918]  P.  78. 


296  RULES  AS  TO  NARROW  CHANNELS,  ETC.  (Ch.  13 

SOUND  SIGNALS 

138.  A  steamer  must  indicate  to  other  vessels  in  sight  the 

course  taken  by  her,  by  giving  sound  signals. 

Article  28  prescribes  these,  but  they  have  been  explained 
in  a  previous  connection,  and  need  not  be  repeated. 

THE  GENERAL  PRECAUTION  RULE 

139.  Proper  precautions,  other  than  those  required  by  the 

rules,  are  not  to  be  neglected. 

Article  29  provides  that  nothing  in  these  rules  shall  ex- 
onerate any  vessel,  or  the  owner  or  master  or  crew  thereof, 
from  the  consequences  of  any  neglect  to  carry  lights  or  sig- 
nals, or  of  any  neglect  to  keep  a  proper  lookout,  or  of  the 
neglect  of  any  precaution  which  may  be  required  by  the 
ordinary  practice  of  seamen  or  by  the  special  circumstances 
of  the  case. 

This  rule  is  intended  as  a  supplement  for  the  other  rules, 
not  as  a  substitute  for  them.  It  covers  many  cases  not  ex- 
pressly included  in  the  other  rules. 

SAME— LOOKOUTS 

140.  The  law  is  rigid  in  requiring  a  competent  lookout, 

charged  with  that  sole  duty. 

A  common  instance  is  the  necessity  of  a  lookout.  Both 
the  English  and  American  courts  have  said  as  emphatically 
as  language  can  express  it  that  vessels  must  have  a  com- 
petent lookout  stationed  where  he  can  best  see,  and  that  he 
must  be  detailed  to  that  sole  duty.  Neither  the  master  nor 
helmsman,  if  engaged  in  their  regular  duties,  can  act  as 
such,  for  they  have  troubles  enough  of  their  own.  A  good 
English  illustration  is  the  Glannibanta.24 

§  110.     24i  p.  d.  283. 


§  140)  THE   GENERAL  PRECAUTION   RULE  297 

In  Clyde  Nav.  Co.  v.  Barclay,25  the  steamer,  which  was  on 
her  trial  trip,  was  in  charge  of  a  pilot,  but  an  officer  also 
was  on  the  bridge,  and  there  was  another  man,  not  proper- 
ly qualified,  on  the  lookout.  The  House  of  Lords  held  this 
sufficient,  and  that  the  bridge  was  the  proper  place  for  the 
lookout  under  the  circumstances. 

The  decisions  of  the  American  courts  have  been  numer- 
ous and  emphatic.  In  the  MANHASSET,20  the  leading 
cases  on  the  subject  were  reviewed,  and  the  difference  be- 
tween the  duties  of  the  master  and  lookout  clearly  put.  In 
that  case  a  ferryboat  crossing  Norfolk  harbor  on  a  stormy 
night  was  condemned  for  having  no  one  on  duty  except  the 
master  at  the  wheel. 

In  fact,  circumstances  may  arise  where  more  than  one 
lookout  is  necessary.  Large  steamers  have  been  held  in 
fault  for  not  having  two,  if  it  appears  that  objects  were  not 
seen  as  soon  as  possible.27 

Under  some  circumstances — as  where  a  vessel  is  back- 
ing, or  another  vessel  is  overtaking — there  should  be  a  look- 
out astern  as  well  as  forward.28 

This  rule  as  to  lookouts  must  not  be  carried  to  a  reductio 
ad  absurdum.  If  the  approaching  vessels  see  each  other  an 
ample  distance  apart  to  take  all  proper  steps,  then  the  ob- 
ject of  having  a  lookout  is  accomplished,  and  the  absence 
of  a  man  specially  detailed  and  stationed  is  a  fault  not  con- 
tributory, and  therefore  immaterial.29 

25 1  A.  C.  790. 

2c  (D.  C.)  34  Fed.  408.  See,  also,  J.  G.  Gilchrist  (D.  C.)  173  Fed. 
G66 ;  Id.,  183  Fed.  105,  105  C.  C.  A.  397 ;  Wilbert  L.  Smith  (D.  C.) 
217  Fed.  981 ;  Union  S.  S.  Co.  v.  Latz,  223  Fed.  402,  138  C.  C.  A. 
638. 

27  BELGENLAND,  114  U.  S.  355,  5  Sup.  Ct.  860,  29  L.  Ed.  152; 
Oregon,  158  U.  S.  1S6,  15  Sup.  Ct.  804,  39  L.  Ed.  943. 

2  8  Nevada,  106  U.  S.  154,  1  Sup.  Ct.  234,  27  L.  Ed.  149;  Sarmatian 
(C.  C.)  2  Fed.  911 ;    Bernicia  (D.  C.)  122  Fed.  SS6. 

29  Farragut,  10  Wall.  338,  19  L.  Ed.  946 ;    Blue  Jacket,  144  U.  S. 


298  RULES  AS  TO   NARROW   CHANNELS,  ETC.  (Ch.  13 

The  proper  station  for  a  lookout  is  where  he  can  have  an 
unobstructed  view.  It  must  be  a  place  unobstructed  by  the 
sails,  and  is  usually  on  the  forecastle,  or  near  the  eyes  of 
the  ship.30 

In  the  case  of  steamers,  although  courts  discourage  the 
practice  of  having  the  lookout  in  the  pilot  house,  his  proper 
location  is  a  question  of  fact,  not  of  law.  The  dissenting 
opinion  of  Chief  Justice  Taney  in  Haney  v.  Baltimore 
Steam-Packet  Co.,31'  puts  the  doctrine  as  follows:  "It  has 
been  argued  that  the  lookout  ought  to  have  been  in  the  bow, 
and  some  passages  in  the  opinions  of  this  court  in  former 
cases  are  relied  on  to  support  this  objection.  But  the  lan- 
guage used  by  the  court  may  always  be  construed  with  ref- 
erence to  the  facts  in  the  particular  case  of  which  they  are 
speaking,  and  the  character  and  description  of  the  vessel. 
What  is  the  most  suitable  place  for  a  lookout  is  obviously 
a  question  of  -fact,  depending  upon  the  construction  and 
rig  of  the  vessel,  the  navigation  in  which  she  is  engaged, 
the  climate  and  weather  to  which  she  is  exposed,  and  the 
hazards  she  is  likely  to  encounter;  and  must,  like  every 
other  question  of  fact,  be  determined  by  the  court  upon  the 
testimony  of  witnesses- — that  is,  upon  the  testimony  of  nau- 
tical men  of  experience  and  judgment.  It  cannot,  in  the  na- 
ture of  things,  be  judicially  known  to  the  court  as  a  mat- 
ter of  law." 

The  courts  have  ruled  that  this  doctrine  applies  to  all 
steamers,  large  ami  small,  both  as  to  the  location  of  the 
lookout  and  the  necessity  of  having  a  man  independent  of 
the  master  and  wheelsman.     In  the  case  of  tugs  it  is  a  rule 

371,  12  Sup.  Ct.  711,  36  L.  Ed.  4C9;  HERCULES,  80  Fed.  998,  26 
C.  C.  A.  301;  Elk,  102  Fed.  GOT.  4L>  C.  C.  A.  598;  Columbia  (D.  0.) 
ioi  Fed.  105;    Fannie  Bayden  (D.  C.)  137  Fed.  280. 

bo  Java,  14  Blatchf.  524,  Fed.  Cas.  No.  7,233;  John  Pridgeon,  Jr. 
i|>.  0.)  38  Fed.  261  ;  Bendo  (D.  C.)  44  Fed.  139,  III;  Fedamore,  137 
Fed.  844,  70  C.  C.  A.  342;  Prinz  Oskar,  219  Fed.  183,  L35  C.  C.  A. 
195. 

23  How.  292,  16  L.  Ed.  5G2. 


§  141)  THE   GENERAL   PRECAUTION   RULE  299 

more  honored  in  the  breach  than  in  the  observance.  There 
is  some  excuse  for  it,  as  the  pilot  house  of  the  tug  is  so  far 
forward  and  so  elevated  as  usually  to  afford  the  best  view. 
And,  in  addition,  the  stem  of  a  tug  being  low  down  in  the 
water,  unlike  the  lofty  stems  of  large  vessels,  is  so  wet  a 
place  in  a  heavy  sea  that  a  lookout  could  do  no  good.  Hence 
the  courts,  though  insisting  on  their  rule  even  as  to  tugs, 
especially  in  harbor  work,  and  requiring  strong  proof  to  sat- 
isfy them  that  the  want  of  a  special  lookout  did  no  harm, 
are  more  lenient  in  such  cases  than  in  cases  of  large  steam- 
ers. The  instances  in  the  books  where  tugs  have  been  con- 
demned in  this  respect  were  cases  where  the  accident  was 
directly  traceable  to  such  neglect.32 

SAME— ANCHORED  VESSELS 

141.  When  a  moving  vessel  runs  into  a  vessel  anchored  in  a 
lawful  place,  with  proper  lights  showing,  or  a  bell 
ringing,  if  such  lights  or  bell  are  required  by  rule, 
and  with  a  proper  anchor  watch,  the  presumptions 
are  all  against  the  moving  vessel,  and  she  is  pre- 
sumed to  be  in  fault,  unless  she  exonerates  her- 
self. 

The  law  in  relation  to  collision  with  anchored  vessels  can 
best  be  classified  under  this  twenty-ninth  rule.  The  pre- 
sumptions against  the  moving  vessel  in  such  a  case  are  very 
strong.  Practically  her  only  defense  is  vis  major,  or  inevit- 
able accident,  in  the  absence  of  fault  on  the  part  of  the  an- 
chored vessel.33 

32  City  of  Philadelphia  v.  Gavagnin,  62  Fed.  617,  10  C.  C.  A.  552; 
George  W.  Childs  (D.  C.)  67  Fed.  271.  As  instances  where  tugs  were 
hold  blameless  on  this  score,  see  Caro  (D.  C.)  23  Fed.  734;  Bendo 
(D.  C.)  44  Fed.  439;  R.  R.  Kirkland  (D.  G.)  4S  Fed.  760;  Blue  Jacket, 
144  TJ.  S.  371.  12  Sup.  Ct.  711,  36  L.  Ed.  469 ;  HERCULES,  80  Fed. 
998,  20  C.  C.  A.  301. 

§  141.     33  Le  Lion  (D.  C.)  S4  Fed.  1011;    Minnie  (D.  C.)  87  Fed. 


300  RULES   AS   TO   NARROW   CHANNELS,  ETC.  (Ch.  13 

If,  however,  there  is  any  maneuver  by  which  an  anchored 
vessel,  on  seeing  a  collision  imminent,  can  avoid  or  lighten 
it,  she  is  required  to  do  so.  Sometimes  the  courts  have  held 
anchored  vessels  in  such  case  required  to  sheer,  or  to  let  out 
additional  chain,  if  they  can  do  so.34 

Anchoring  in  Channels 

How  far  it  is  negligent  in  an  anchored  vessel  to  anchor  in 
a  channel  of  navigation  is  a  question  of  fact  depending  up- 
on special  circumstances.  In  the  neighborhood  of  many 
ports  there  are  designated  anchorage  grounds,  and  a  vessel 
anchored  in  these  grounds  designated  by  proper  authority 
is  not  at  fault  on  the  mere  score  of  anchorage.  In  other 
places  vessels  have  grounds  designated  not  by  any  special 
authority,  but  by  general  usage,  and  in  that  case,  if  the  ves- 
sel anchors  where  it  has  been  customary  to  anchor,  and  an- 
chors in  such  a  way  that  ample  room  is  left  for  the  passage 
of  vessels,  whether  by  day  or  night,  allowing  all  necessary 
margin  for  the  uncertainties  of  wind  or  current,  it  would 
not  be  negligent  so  to  anchor.  But,  if  a  vessel  anchors  in 
a  channel  of  navigation  in  such  a  way  as  to  plant  herself  in 
the  necessary  path  of  passing  vessels,  so  that  moving  ves- 
sels in  such  case  come  into  collision  with  her,  she  is  liable  at 
least  to  be  held  partly  in  fault  for  the  resulting  collision  ; 
and,  if  it  was  a  matter  of  nice  calculation  whether  the  mov- 
ing vessel  could  pass  or  not,  she  would  be  held  solely  in 
fault. 

In  the  Worthington,35  a  vessel  anchored  in  the  St.  Clair 
river  where  it  was  customary  to  anchor,  but  left  ample  room 
for  the  passage  of  moving  vessels.  It  was  held  that  she  was 
not  to  blame  on  the  mere  score  of  her  anchorage,  but  that 

780;  Id.,  100  Fed.  128,  40  C.  C.  A.  312 ;  Europe  (D.  C.)  175  Fed.  59G : 
Id.,  100  Fed.  475,  111  C.  C.  A.  307. 

a*  Sapphire,  11  Wall.  104,  20  L.  Ed.  127;  Clara,  102  U.  S.  200, 
26  l,  Ed.  145;  Oliver  (D.  C.)  22  Fed.  84S ;  Clai'ita,  23  Wall.  1,  23 
]..  Ed.  14G;   Director  (D.  C.)  ISO  Fed.  606. 

=  5  (D.  C.)  19  Fed.  836. 


§  141)     •    THE  GENERAL  PRECAUTION  RULE  301 

the  situation  imposed  upon  her  increased  vigilance  in  ref- 
erence to  keeping  an  anchor  watch  and  proper  light. 

The  cases  of  the  Oscar  Townsend  36  and  the  Ogemaw  8T 
were  also  cases  of  vessels  anchored  in  the  St.  Clair  river,  in 
which  the  anchored  vessel  was  held  blameless. 

On  the  other  hand,  in  the  Passaic,38  a  vessel  at  anchor  in 
the  St.  Clair  river  was  held  at  fault,  not  so  much  for  anchor- 
ing there  as  for  anchoring  herself  in  such  a  manner  that  she 
could  not  move  or  sheer  either  way,  the  other  boat  also  be- 
ing held  in  fault  for  running  into  her. 

In  the  S.  Shaw,39  a  vessel  anchored  in  the  Delaware  with- 
in the  range  of  the  lights,  which  was  forbidden  by  the  local 
statute.    She  was  held  at  fault. 

So,  in  La  Bourgogne,40  a  steamer  was  held  in  fault  for 
anchoring  in  New  York  harbor,  in  a  fog,  outside  the  pre- 
scribed anchorage  grounds. 

In  Ross  v.  Merchants'  &  Miners'  Transp.  Co.,41  certain 
barges  were  anchored  in  such  a  way  as  to  obstruct  the  chan- 
nel, and  there  was  strong  evidence  also  that  they  did  not 
have  up  proper  lights.  The  court  decided  that  they  were  to 
blame  for  adopting  such  an  anchorage. 

This  doctrine  of  obstructing  narrow  channels  has  the 
merit  of  great  antiquity.  Article  26  of  the  Laws  of  Wisbuy 
provides:  "If  a  ship  riding  at  anchor  in  a  harbor,  is  struck 
by  another  ship  which  runs  against  her,  driven  by  the  wind 
or  current,  and  the  ship  so  struck  receives  damage,  either  in 
her  hull  or  cargo ;  the  two  ships  shall  jointly  stand  to  the 
loss.  But  if  the  ship  that  struck  against  the  other  might 
have  avoided  it,  if  it  was  done  by  the  master  on  purpose,  or 
by  his  fault,  he  alone  shall  make  satisfaction.  The  reason 
is,  that  some  masters  who  have  old  crazy  ships,  may  will- 
ingly lie  in  other  ships'  way,  that  they  may  be  damnify'd  or 
sunk,  and  so  have  more  than  they  were  worth  for  them.    On 

36  (D.  C.)  17  Fed.  93.  39  (D.  C.)  6  Fed.  93. 

3  7  (D.  C.)  32  Fed.  919.  40  SO  Fed.  475,  30  C.  O.  A.  203. 

3  8  (D.  C.)  76  Fed.  460.  41  104  Fed.  302,  43  C.  C.  A.  53S. 


302  RULES  AS  TO  NARROW   CHANNELS,  ETC.  (Ch.  13 

which  account  this  law  provides,  that  the  damage  shall  be 
divided,  and  paid  equally  by  the  two  ships,  to  oblige  both  to 
take  care,  and  keep  clear  of  such  accidents  as  much  as  they 
can." 

These  decisions  were  all  rendered  independent  of  statu- 
tory provision. 

In  the  appropriation  act  of  March  3,  1899,  Congress  made 
elaborate  provisions  for  the  protection  of  navigable  chan- 
nels, not  only  against  throwing  obstructions  overboard,  but 
against  illegal  anchorage.  Sections  15  and  16  of  that  act  *2 
provided  that  it  should  not  be  lawful  to  tie  up  or  anchor 
vessels  or  other  craft  in  navigable  channels  in  such  a  man- 
ner as  to  prevent  or  obstruct  the  passage  of  other  vessels  or 
craft,  and  imposed  a  penalty  not  only  upon  the  navigator 
who  put  them  there,  but  upon  the  vessel  itself. 

It  was  not  the  intent  of  Congress  by  this  act  to  forbid 
vessels  absolutely  from  anchoring  in  navigable  channels. 
If  their  draught  of  water  is  so  great  that  they  can  only  nav- 
igate in  a  channel,  it  is  so  great  that  they  can  anchor  no- 
where else.  At  the  same  time,  any  great  draught  and  the 
necessities  of  the  occasion  could  not  be  used  as  an  excuse  to 
blockade  the  channel. 

The  meaning  of  the  act  is  that  vessels  are  thereby  for- 
bidden from  completely  obstructing  the  channel,  or  so  ob- 
structing it  as  to  render  navigation  difficult.  The  language 
of  the  act  is,  "prevent  or  obstruct."  Hence,  if  a  vessel  an- 
chors in  a  navigable  channel,  where  other  vessels  had  been 
accustomed  to  anchor,  and  anchors  in  such  a  way  as  to  leave 
a  sufficient  passageway  for  vessels  navigating  that  chan- 
nel, she  can  hardly  be  held  to  violate  this  statute.  If  she 
was  put  there  by  local  authority — as  by  a  local  pilot  or  har- 
bor master — that  would  be  evidence  in  her  favor  to  show 
that  she  was  not  guilty  of  negligence ;  but  even  that  would 
not  excuse  her  for  completely  obstructing  the  channel,  or  so 
far  obstructing  it  as  to  render  navigation  around  her  diffi- 

4-30  Stat.  1152,  1153  (U.  S.  Comp.  St.  g§  9920,  9921);   post,  p.  489. 


§  142)  THE    GENERAL   PRECAUTION    RULE  303 

cult.  Neither  the  vessel  herself  nor  any  local  authority- 
can  be  justified  in  blockading  or  rendering  it  unreasonably 
difficult.43 

In  the  City  of  Reading,44  a  vessel  was  anchored  outside 
the  regular  harbor  grounds  by  a  pilot — a  fact  unknown  to 
her  officers,  as  they  were  strangers  in  the  port.  District 
Judge  McPherson  held  that  the  vessel  was  not  negligent  for 
such  an  anchorage  under  such  circumstances.  He  does  not 
allude  to  the  act  of  Congress  above  referred  to,  although  the 
accident  happened  on  September  18,  1899,  six  months  after 
the  act  went  into  effect. 

SAME— WRECKS 

142.  The  owner  of  a  vessel  sunk  in  collision  is  not  liable  for 
subsequent  damages  done  by  her  if  he  abandons 
her,  but  is  liable  if  he  exercises  any  acts  of  owner- 
ship. In  the  latter  case  he  is  required  to  put  a  bea- 
con on  her  at  night,  and  a  plain  buoy  in  the  day. 

The  reason  why  an  owner  who  abandons  a  vessel  is  not 
liable  for  any  further  damage  is  that  his  misfortune  is  al- 
ready great  enough,  and,  if  he  feels  that  he  cannot  afford 
to  save  his  vessel,  the  courts  will  not  add  to  his  responsibil- 
ity.     Under    the    federal    statutes    the    government    takes 

43  Itasca  (D.  C.)  117  Fed.  885;  Northern  Queen  (D.  C.)  117  Fed. 
906 ;  John  H.  Starin,  122  Fed.  236,  5S  C.  C.  A.  600 ;  Caldy  (D.  C.) 
123  Fed.  S02 ;  Id.,  153  Fed.  837,  83  C,  C.  A.  19 :  Newburgh,  130  Fed. 
321,  64  O.  C.  A.  567;  City  of  Birmingham,  138  Fed.  555,  71  C.  C.  A. 
115;  Job  H.  Jackson  (D.  C.)  144  Fed.  896;  Ann  J.  Trainer.  152  Fed. 
1021,  82  O.  C.  A.  332;  Europe,  190  Fed.  475,  111  C.  C.  A.  307; 
Strathleven,  213  Fed.  975,  130  O.  C.  A.  3S1. 

i*  (D.  C.)  103  Fed.  696,  affirmed  City  of  Dundee,  108  Fed.  679, 
47  C.  C.  A.  581,  on  another  point.  As  to  the  effect  of  local  usages 
or  the  acts  of  local  officials,  see,  also,  Severn  (D.  C.)  113  Fed.  57S; 
Charles  E.  Matthews  (D.  C.)  132  Fed.  143 ;  Juniata  (D.  C.)  124  Fed. 
S61 :  Merritt  &  Chapman  Derrick  &  Wrecking  Co.  v.  Cornell  Steam- 
boat  Co.,  185  Fed.  261,  107  C.  C.  A.  367. 


304  RULES  AS   TO   NARROW   CHANNELS,  ETC.  (Ch.  13 

charge  of  abandoned  wrecks,  and  blows  them  up,  or  other- 
wise destroys  them ;  or,  if  it  does  not  care  to  do  so,  sells 
the  wreck  after  a  certain  advertisement,  and  requires  the 
purchaser  to  remove  them  as  obstructions  from  the  chan- 
nel.45 

The  law  on  this  subject  of  the  duty  of  owners  of  sunken 
wrecks  may  be  seen  from  the  cases  of  the  Utopia,46  U.  S. 
v.  Hall,47  and  Ball  v.  Berwind.48 

If  the  owner,  instead  of  abandoning  his  wreck,  decides  to 
raise  her,  he  is  then  responsible  for  any  injury  done  by  her 
from  the  failure  to  take  proper  precaution. 

In  fact,  this  is  one  case  where  there  may  be  a  liability 
even  for  the  acts  of  an  independent  contractor.  As  a  gen- 
eral rule,  when  an  independent  contractor  is  employed  to 
undertake  work  which  an  employer  can  lawfully  let  out  to 
contract,  he  alone,  and  not  the  owner,  is  responsible;  49  but, 
where  the  act  required  is  a  personal  duty,  then  the  owner 
may  be  responsible,  even  for  the  acts  of  an  independent  con- 
tractor. To  obstruct  a  navigable  channel  without  giving 
proper  notice  is  an  act  unlawful  in  itself,  just  as  the  obstruc- 
tion of  a  highway  or  street  would  be  under  similar  circum- 
stances; and  therefore,  when  the  owner  of  a  vessel  is  hav- 
ing her  raised  by  an  independent  contractor,  and  the  con- 
tractor omits  to  put  proper  lights  or  buoys  upon  the  wreck, 
the  owner  also  is  liable ;  and  he  is  liable  for  any  lack  of  due 
diligence  in  raising  the  wreck.50 

§  142.  45  Act  March  3,  1S99,  §§  19,  20,  30  Stat.  1154  (U.  S.  Comp. 
St.   §§   0024,   9925). 

48  [1803]  A.  C.  402. 

4  7  G3  Fed.  473,  11  C.  C.  A.  294. 
4  8  (D.  C.)  29  Fed.  541. 

49  Ante,  pp.  211,  213. 

BoSnark,  [1899]  P.  74;  Id.,  [1000]  P.  105;  Drill  Boat  No.  4  (P. 
C.)  233  Fed.  589;  Compare  Weinman  v.  De  Palma,  232  U.  S.  571. 
34  Sup.  Ct.  370,  58  L.  Ed.  733.  But  the  owner,  after  having  se- 
cured the  services  of  the  Lighthouse  Department,  is  not  liahle  for 


143)  THE   STAND-BY  ACT  305 


THE  STAND-BY  ACT 

143.  This  act  requires  colliding  steamers  to  stay  by  each 
other  regardless  of  the  question  of  fault,  on  pain  of 
being  presumed  negligent  if  they  disregard  this 
duty. 

The  act  of  September  4,  1890,  provides  as  follows: 
"Be  it  enacted  by  the  Senate  and  House  of  Representa- 
tives of  the  United  States  of  America  in  Congress  assem- 
bled, that  in  every  case  of  collision  between  two  vessels  it 
shall  be  the  duty  of  the  master  or  person  in  charge  of  each 
vessel,  if  and  so  far  as  he  can  do  so  without  serious  danger 
to  his  own  vessel,  crew,  and  passengers  (if  any),  to  stay 
by  the  other  vessel  until  he  has  ascertained  that  she  has  no 
need  of  further  assistance,  and  to  render  to  the  other  vessel, 
her  master,  crew,  and  passengers  (if  any)  such  assistance  as 
may  be  practicable  and  as  may  be  necessary  in  order  to  save 
them  from  any  danger  caused  by  the  collision,  and  also  to 
give  to  the  master  or  person  in  charge  of  the  other  ves- 
sel the  name  of  his  own  vessel  and  her  port  of  registry, 
or  the  port  or  place  to  which  she  belongs,  and  also  the  name 
of  the  ports  and  places  from  which  and  to  which  she  is 
bound.  If  he  fails  so  to  do,  and  no  reasonable  cause  for 
such  failure  is  shown,  the  collision  shall,  in  the  absence  of 
proof  to  the  contrary,  be  deemed  to  have  been  caused  by 
his  wrongful  act,  neglect  or  default. 

"Sec.  2.  That  every  master  or  person  in  charge  of  a  Unit- 
ed States  vessel  who  fails,  without  reasonable  cause,  to  ren- 
der such  assistance  or  give  such  information  as  aforesaid 
shall  be  deemed  guilty  of  a  misdemeanor,  and  shall  be  lia- 
ble to  a  penalty  of  one  thousand  dollars,  or  imprisonment 

its  acts  or  omissions.     Plymouth,  225  Fed.  483,  140  C.  C.  A.  1;    Mc- 
Caulley  v.  Philadelphia,  119  Fed.  5S0,  56  C.  C.  A.  100. 
Hughes, Adm.  (  2oEd.  )  — 20 


306  RULES   AS   TO   NARROW   CHANNELS,  ETC.  (Ch.  13 

for  a  term  not  exceeding  two  years ;  and  for  the  above  sum 
the  vessel  shall  be  liable  and  may  be  seized  and  proceeded 
against  by  process  in  any  District  Court  of  the  United  States 
by  any  person ;  one-half  such  sum  to  be  payable  to  the  in- 
former and  the  other  half  to  the  United  States."  51" 

This  is  a  copy  of  the  earlier  English  act  on  the  same  sub- 
ject, and  is  intended  to  prevent  a  ship,  even  if  faultless  her- 
self, from  leaving  the  other  to  her  fate,  and  also  to  give  the 
information  necessary  as  the  basis  of  any  proceeding  for 
damages. 

Presumptions  against  Violator  of  Act 

The  act  merely  raises  a  presumption  in  the  absence  of 
evidence  to  the  contrary.  Hence,  if  the  case  is  tried  on 
plenary  proofs,  the  act  does  not  do  more  than  shift  a  nicely- 
balanced  burden  of  proof.  The  master  may  be  punished  for 
his  inhumanity  under  the  second  section,  but  his  innocent 
owners  cannot  be  mulcted  in  damages  on  that  account  if 
their  vessel  was  guiltless  of  contributing  to  the  collision. 
As  Dr.  Lushington  says  in  the  Queen  of  the  Orwell:52 
"Now  for  the  penalty,  or  what  may  be  called  the  penalty  : 
'In  case  he  fails  so  to  do,  and  no  reasonable  excuse  for  said 
failure,'  it  shall  be  attended  with  certain  consequences 
which  are  enumerated  in  the  enactment.  The  effect  of  that, 
I  think,  is  precisely  what  has  been  stated — that,  supposing 
such  a  state  of  things  to  occur,  there  is  thrown  upon  the 
party  not  rendering  assistance  the  burden  of  proof  that  the 
collision  was  not  occasioned  by  his  wrongful  act,  neglect,  or 
default.  It  does  not  go  further.  Assuming  this  case  to 
come  within  the  provisions  of  the  statute,  the  proper  ques- 
tion I  shall  have  to  put  to  you  is  that  which  I  should  put  if 
no  such  statute  at  all  existed:  whether  this  collision  was 
occasioned  by  the  wrongful  act,  neglect,  or  default  of  the 
steamer.'' 

§  143.     ■'  26  Stat.   125  (U.  S.  Comp.  St.  §§  7970,  79S0). 
52 1  Mar.  Law  ('as.  (O.  S.)  300. 


§  143)  THE   STAND-BY   ACT  307 

A  leading  American  case  on  the  subject  is  the  HER- 
CULES.53 

53  80  Fed.  998,  26  C.  C.  A.  301.  See,  also,  Trader  (D.  C.)  129  Fed. 
462;  Luzerne  (D.  C.)  14S  Fed.  133;  Id.,  157  Fed.  391,  85  C.  C.  A. 
328;  Lizzie  Crawford  (D.  C.)  170  Fed.  837.  Pitgaveney,  [1910]  P. 
215.  In  England  this  presumption  of  negligence  has  been  repealed 
by  the  Maritime  Conventions  Act  1911,  §  4  (2). 


308  DAMAGES  IN   COLLISION   CASES  (Ch.  14 

CHAPTER  XIV 
OF  DAMAGES  IN  COLLISION  CASES 

144.  Recovery  Based  on  Negligence. 

145.  Inevitable  Accident  or  Inscrutable  Fault 

146.  One  Solely  in  Fault. 

147.  Both  in  Fault. 

148.  Rights  of  Third  Party  where  Both  in  Fault. 

149.  Contribution  between  Colliding  Vessels — Enforcement  In  Suit 

against  Both. 

150.  Enforcement  by  Bringing  in  Vessel  not  Party  to  Suit 

151.  Enforcement  by  Independent  Suit 

152.  Measure  of  Damages. 

153.  When  Loss  Total. 

154.  When  Loss  Partial. 

155.  Remoteness  of  Damages — Subsequent  Storm. 

156.  Doctrine  of  Error  in  Extremis. 

RECOVERY  BASED  ON  NEGLIGENCE 

144.  Negligence  is  an  essential  to  recovery  of  damages  in 
collision  cases. 

The  mere  happening  of  a  collision  does  not  give  rise  to  a 
right  of  action  for  damages  resulting  therefrom,  except  in 
those  cases  where,  under  the  navigation  rules,  one  vessel  is 
presumed  to  be  in  fault  until  she  exonerates  herself.  Even 
in  those  cases  the  right  of  recovery  is  based,  not  upon  the 
fact  of  collision,  but  upon  the  presumption  of  negligence. 

A  collision  may  happen  under  any  one  of  several  circum- 
stances. It  may  arise  without  fault,  it  may  arise  by  the 
fault  of  either  one  of  the  two,  or  it  may  arise  by  the 
fault  of  both.  The  law,  as  administered  in  the  admiralty 
courts,  is  summarized  by  Lord  Stowell  in  the  WOODROP- 
SIMS.1    In  it  he  says: 

§  144.    12  Dod.  83. 


§  145)      INEVITABLE   ACCIDENT   OR   ESTSCRUTABLE   FAULT        309 

"In  the  first  place,  it  [collision]  may  happen  without 
blame  being  imputable  to  either  party ;  as,  where  the  loss 
is  occasioned  by  a  storm,  or  other  vis  major.  In  that  case 
the  misfortune  must  be  borne  by  the  party  on  whom  it  hap- 
pens to  light ;  the  other  not  being  responsible  to  him  in  any 
degree.  Secondly,  a  misfortune  of  this  kind  may  arise 
where  both  parties  are  to  blame — where  there  has  been 
want  of  due  diligence  or  of  skill  on  both  sides.  In  such  a 
case  the  rule  of  law  is  that  the  loss  must  be  apportioned  be- 
tween them,  as  having  been  occasioned  by  the  fault  of  both 
of  them.  Thirdly,  it  may  happen  by  the  misconduct  of  the 
suffering  party  only ;  and  then  the  rule  is  that  the  sufferer 
must  bear  his  own  burden.  Lastly,  it  may  have  been  the 
fault  of  the  ship  which  ran  the  other  down ;  and  in  this  case 
the  innocent  party  would  be  entitled  to  an  entire  compen- 
sation from  the  other." 

The  question  must  be  considered — First,  as  between  the 
two  ships ;   and,  second,  as  respects  third  parties. 

As  between  the  owners  of  the  two  ships,  it  must  be  con- 
sidered— First,  where  neither  is  in  fault;  second,  where  one 
alone  is  in  fault :   third,  where  both  are  in  fault. 


INEVITABLE  ACCIDENT  OR  INSCRUTABLE 
FAULT 

145.  Where  neither  vessel  is  in  fault,  or  where  the  fault  is 
inscrutable,  neither  can  recover,  and  the  loss  rests 
where  it  falls. 

Meaning  of  "Inevitable  Accidenf 

A  collision  arising  by  inevitable  accident  comes  under 
this  clause. 

An  "inevitable  accident,"  in  the  sense  in  which  it  is  used 
in  this  connection,  does  not  mean  an  accident  unavoidable 
under  any  circumstances,  but  one  which  the  party  accused 
cannot  prevent  by  the  exercise  of  ordinary  care,  caution, 


•HO  DAMAGES   IN   COLLISION  CASES  (  Ch.  14 

and  maritime  skill.  This  definition  is  taken  from  the  MAR- 
PESIA.2 

In  the  GRACE  GIRDLER,3  the  court  says:  "Inevitable 
accident  is  where  a  vessel  is  pursuing  a  lawful  avocation  in 
a  lawful  manner,  using  the  proper  precautions  against  dan- 
ger, and  an  accident  occurs.  The  highest  degree  of  caution 
that  can  be  used  is  not  required.  It  is  enough  that  it  is 
reasonable  under  the  circumstances;  such  as  is  usual  in 
similar  cases,  and  has  been  found  by  long  experience  to  be 
sufficient  to  answer  the  end  in  view — the  safety  of  life  and 
property.  Where  there  is  a  reasonable  doubt  as  to  which 
party  is  to  blame,  the  loss  must  be  sustained  by  the  party 
on  whom  it  has  fallen." 

In  the  Mabey  4  the  same  idea  is  expressed  thus :  "Where 
the  collision  occurs  exclusively  from  natural  causes,  and 
without  any  negligence  or  fault  on  the  part  of  either  party, 
the  rule  is  that  the  loss  must  rest  where  it  fell,  as  no  one 
is  responsible  for  an  accident  which  was  produced  by  caus- 
es over  which  human  agency  could  exercise  no  control. 
Such  a  doctrine,  however,  can  have  no  application  to  a  case 
where  negligence  or  fault  is  shown  to  have  been  committed 
on  either  side.  Inevitable  accident,  as  applied  to  a  case  of 
this  description,  must  be  understood  to  mean  a  collision 
which  occurs  when  both  parties  have  endeavored,  by  every 
means  in  their  power,  with  due  care  and  caution,  and  a 
proper  display  of  nautical  skill,  to  prevent  the  occurrence 
of  the  accident,  and  where  the  proofs  show  that  it  occurred 
in  spite  of  everything  that  nautical  skill,  care,  and  precau- 
tion could  do  to  keep  the  vessels  from  coming  together." 

The  reason  for  this  is  that  it  is  unfair  to  hold  any  one  re- 

§  145.     2L.R.4  P.  C.  212;    Schwan,  [1S921  P.  419. 

3  7  Wall.  190,  19  L.  Ed.  113;  Lackawanna,  210  Fed.  262,  127  C.  C. 
A.  SO. 

4 14  Wall.  204,  20  L.  Ed.  881 ;  Coxe  Bros.  &  Co.  v.  Cunard  S.  S. 
Co.  (D.  C.)  174  Fed.  100. 


§  145)       INEVITABLE   ACCIDENT   OR  INSCRUTABLE   FAULT        311 

sponsible  for  a  disaster  produced  by  causes  over  which  hu- 
man skill  and  prudence  can  exercise  no  control.5 

Under  this  class  may  be  ranged  those  cases  where  acci- 
dents happen  from  the  breakdown  of  machinery  or  other 
appliances. 

In  the  William  Lindsay,6  a  vessel  was  tied  to  a  regular 
mooring  buoy  in  the  harbor.  During  a  storm  the  buoy 
broke  loose,  and  in  trying  to  put  out  an  anchor  the  cable 
on  the  windlass  became  jammed.  The  court  held  that  it 
was  an  inevitable  accident. 

In  the  Olympia,7  a  collision  was  caused  by  the  breaking 
of  a  tiller  rope  from  a  latent  defect,  the  proof  showing  that 
it  had  been  carefully  inspected.  The  court  held  that  it  was 
an  inevitable  accident. 

On  the  other  hand,  in  the  M.  M.  Caleb,8  where  a  rudder 
chain  broke  from  a  defect  which  was  discoverable  by  the 
exercise  of  reasonable  care,  the  court  held  that  it  was  neg- 
ligence, and  not  an  inevitable  accident. 

Collisions  may  occur  from  an  inevitable  accident,  though 
nothing  breaks,  and  there  is  no  vis  major.  In  the  Java  9  a 
small  schooner,  which  came  from  behind  a  large  school- 
ship,  was  struck  by  a  steamer  coming  from  the  other  side, 
and  it  appeared  that  the  steamer  could  not  have  seen  the 

s  Sunnyside,  91  U.  S.  20S-210,  23  L.  Ed.  302. 

6L.  R.  5  P.  C.  33S;  E.  M.  Peck,  22S  Fed.  4S1,  143  C.  C.  A.  63; 
Hispania,  242  Fed.  265,  155  C.  C.  A.  105.  But  jamming  or  breaking 
of  steering  gear,  caused  by  too  sudden  a  change  in  order  to  avoid 
a  danger  that  should  have  been  anticipated  sooner,  is  not  an  inevi- 
table accident.  Brigham  v.  Luckenbach  (D.  C.)  140  Fed.  322;  Ed- 
mund Moran,  180  Fed.  700,  104  C.  C.  A.  552. 

-  61  Fed.  120,  9  C.  C.  A.  393 ;    Virgo,  3  Asp.  285. 

s  10  Blatchf.  467,  Fed.  Cas.  No.  9,683 ;  Acme  (D.  C.)  123  Fed.  814  ; 
J.  N.  Gilbert,  222  Fed.  37,  137  C.  C.  A.  575 ;  Warkworth,  9  P.  D.  20, 
145 ;   Merchant  Prince,  [1892]  P.  179. 

a  14  Wall.  189,  20  L.  Ed.  S34 ;  Columbus,  Fed.  Cas.  No.  3,013 ; 
Luzerne  (D.  C.)  148  Fed.  133;  Id.,  157  Fed.  391,  S5  C.  C.  A.  32S ; 
Merritt  &  Chapman  Derrick  &  Wrecking  Co.  v.  Cornell  Steamboat 
Co.  (D.  C.)  174  Fed.  716;    Id.,  1S5  Fed.  261,  107  C.  C.  A.  307. 


312  DAMAGES  IN   COLLISION   CASES  (Ch.  14 

sail  vessel  on  account  of  the  large  ship.  The  court  held 
that  the  accident  was  inevitable. 

In  the  Transfer  No.  3,10  one  boat  was  gradually  over- 
hauling another,  and,  when  in  a  position  where  she  could 
not  stop  in  time  to  avoid  collision,  the  machinery  of  the 
front  boat  broke  down.  The  case  was  held  one  of  inevitable 
accident. 

The  party  defending  on  this  ground  has  the  burden  of 
negativing  any  negligence  on  his  part  which  might  account 
for   the  accident.11 

In  cases  of  inscrutable  fault,  also,  each  party  bears  his 
own  loss.  Cases  under  this  head  are  not  common,  as  courts 
are  loath  to  admit  inability  to  locate  fault.12 

ONE  SOLELY  IN  FAULT 

146.  Where  one  alone  is  in  fault,  that  one  alone  is  liable. 

This  is  so  obvious  that  further  discussion  seems  unnec- 
essary. 

BOTH  IN  FAULT 

147.  Where  both  are  in  fault,  the  damages  are  equally  di- 

vided, irrespective  of  the  degree  of  fault. 

This  is  the  settled  law  in  America,  and  until  recently  in 
England,  and  marks  a  sharp  distinction  between  the  com- 
mon-law and  admiralty  courts.  The  distinction  between 
the  two  forums  is  summarized  in  CAYZER  v.  CARRON 
Co.,13  in  which  the  court  said: 

io  (D.  C.)  91  Fed.  803. 

i)  Edmund  Moran,  180  Fed.  700,  104  C.  C.  A.  552;  Bayonne,  213 
Fed.  216,  129  C.  C.  A.  SCO;    Merchant  Prince,  [1892]  P.  179. 

12  Centurion,  100  Fed.  GG3,  40  C.  C.  A.  634;  Jumna  (D.  C.)  140 
Fed.  743;  Id.,  149  Fed.  171,  79  C.  C.  A.  119;  Banner  (D.  C.)  225 
Fed.    133. 

§  117.     139  a.  C.  S73. 


§  147)  BOTH  IN   FAULT  313 

"Now,  upon  that  I  think  there  is  no  difference  between 
the  rules  of  law  and  the  rules  of  admiralty  to  this  extent: 
That,  where  any  one  transgresses  a  navigation  rule,  wheth- 
er it  is  a  statutory  rule,  or  whether  it  is  a  rule  that  is  impos- 
ed by  common  sense — what  may  be  called  the  common  law 
— and  thereby  an  accident  happens,  of  which  that  trans- 
gression is  the  cause,  he  is  to  blame,  and  those  who  are  in- 
jured by  the  accident,  if  they  themselves  are  not  parties 
causing  the  accident,  may  recover  both  in  law  and  in  ad- 
miralty. If  the  accident  is  a  purely  inevitable  accident,  not 
occasioned  by  the  fault  of  either  party,  then  common  law 
and  admiralty  equally  say  that  the  loss  shall  lie  where  it 
falls— each  party  shall  bear  his  own  loss.  Where  the  cause 
of  the  accident  is  the  fault  of  one  party,  and  one  party  only, 
admiralty  and  common  law  both  agree  in  saying  that  that 
one  party  who  is  to  blame  shall  bear  the  whole  damage  of 
the  other.  When  the  cause  of  the  accident  is  the  fault  of 
both  each  party  being  guilty  of  blame  which  causes  the 
accident,  there  is  a  difference  between  the  rule  of  admiralty 
and  the  rule  of  common  law.  The  rule  of  common  law  says, 
as  each  occasioned  the  accident,  neither  shall  recover  at  all, 
and  it  shall  be  just  like  an  inevitable  accident ;  the  loss  shall 
lie  where  it  falls.  Admiralty  says,  on  the  contrary,  if  both 
contributed  to  the  loss,  it  shall  be  brought  into  hotchpotch, 
and  divided  between  the  two.  Until  the  case  of  Hay  v.  L,e 
Neve,14  which  has  been  referred  to  in  the  argument,  there 
was  a  question  in  the  admiralty  court  whether  you  were  not 
to  apportion  it  according  to  the  degree  in  which  they  were 
to  blame ;  but  now  it  is,  I  think,  quite  settled,  and  there  is 
no  dispute  about  it,  that  the  rule  of  the  admiralty  is  that,  if 
there  is  blame  causing  the  accident  on  both  sides,  they  are 
to  divide  the  loss  equally,  just  as  the  rule  of  law  that,  if 
there  is  blame  causing  the  accident  on  both  sides,  however 
small  that  blame  may  be  on  one  side,  the  loss  lies  where  it 
falls." 

142  Shaw,  395. 


314  DAMAGES   IN   COLLISION   CASES  (Ch.  14 

The  doctrine  was  adopted  in  America  in  the  CATHA- 
RINE,15 and  has  been  followed  in  numerous  subsequent 
cases,  in  all  of  which  the  Supreme  Court  treats  the  law  on 
the  subject  as  settled.16 

In  arriving  at  the  apportionment  of  damages  when  the 
injuries  to  the  two  vessels  are  unequal,  the  doctrine  is  not 
that  the  losses  of  each  vessel  are  treated  as  separate  causes 
of  action  asserted  as  cross  causes,  but  that  it  is  one  cause 
of  action  only,  and  the  vessel  most  injured  is  entitled  to  a 
decree  for  half  the  difference  between  her  loss  and  the 
other.17 

If  the  limited  liability  act  protects  the  owners  of  one  ves- 
sel from  having  to  pay  their  moiety,  the  owners  of  the  other 
vessel,  if  a  third  party  has  held  them  for  more  than  their 
moiety,  can  recoup  their  loss,  or  plead  it  in  set-off  against 
the  claim  which  the  other  vessel  would  otherwise  have 
against  them.18 

In  the  Chattahoochee  19  the  owner  of  the  vessel  lost  libel- 
ed the  other  vessel  for  his  own  loss  and  as  bailee  of  the  car- 
go for  its  loss.  Both  vessels  were  held  in  fault.  The  vessel 
proceeded  against  was  permitted  to  plead  its  liability  to 
the  shippers  in  reduction  of  its  liability  to  the  owner  of  the 
other  vessel,  though  the  shippers  could  not  have  held  their 
own  carrier  in  a  direct  proceeding  on  account  of  the  Harter 

is  17  How.  170,  15  L.  Ed.  23?,. 

ie  See,  as  illustrations,  Maria  Martin,  12  Wall.  31,  20  L.  Ed.  251; 
NOKTII  STAR,  10G  U.  S.  17,  1  Sup.  Ct.  41,  27  L.  Ed.  91. 

it  Sapphire,  IS  Wall.  51,  21  L.  Ed.  814;  Manitoba,  122  U.  S.  97. 
7  Sup.  Ct.  1158,  30  L.  Ed.  1095:  Burke,  Eed.  Cas.  No.  2,159;  Khedive. 
7  App.  Cas.  795,  SOS;  London  S.  S.  A.ss'n  v.  Grampian  S.  S.  Co.,  24  Q. 
B.  D.  32,  G03.  Damages  for  which  one  of  the  two  vessels  has  been 
held  liable  to  a  third  are  broughl  into  the  estimate.  Frankland, 
[1901]  P.  1G1. 

is  NOKTII  STAR,  106  U.  S.  17,  1  Sup.  Ct.  41,  27  L.  Ed.  91. 

ioi73  U.  S.  540,  19,  Sup.  Ct.  191,  13  L.  Ed.  801;  Albert  Dumois. 
177  U.  S.  240,  20  Sup.  Ct.  595,  4  1  L.  Ed.  751;  George  W.  Roby,  111 
Fed.  601,  49  C.  C.  A.  481. 


§  147)  BOTH   IN    FAULT  315 

Act.  In  other  words,  a  balance  was  struck  between  the 
two  sets  of  damage  and  a  decree  given  for  half  the  differ- 
ence. 

Origin  of  the  Half-Damage  Rule 

In  examining  the  history  of  this  half-damage  rule,  it  is 
remarkable  that  the  courts  have  adopted  as  a  case  for  divi- 
sion of  damages  simply  the  case  of  mutual  fault.  This  was 
not  the  origin  of  the  rule.  It  may  be  traced  at  least  as  far 
back  as  the  Laws  of  Oleron,  article  14  of  which  provides: 

"If  a  Vessel  being  moar'd  lying  at  Anchor,  be  struck  or 
grappled  with  another,  vessel  under  sail  that  is  not  very  well 
steer'd,  whereby  the  vessel  at  anchor  is  prejudic'd,  as  also 
wines,  or  other  merchandize,  in  each  of  the  said  ships  dam- 
nify'd.  In  this  case  the  whole  damage  shall  be  in  com- 
mon, and  be  equally  divided  and  appriz'd  half  by  half;  and 
the  Master  and  Mariners  of  the  vessel  that  struck  or  grap- 
pled with  the  other,  shall  be  bound  to  swear  on  the  Holy 
Evangelists,  that  they  did  it  not  willingly  or  willfully.  The 
reason  why  this  judgment  was  first  given,  being,  that  an  old 
decay'd  vessel  might  not  purposely  be  put  in  the  way  of  a 
better,  which  will  the  rather  be  prevented  when  they  know 
that  the  damage  must  be  divided." 

Under  this  provision  the  damages  were  divided  not  only 
as  among  the  vessels,  but  the  cargoes,  and  that,  too,  wheth- 
er negligent  or  not,  unless  it  was  intentional. 

Article  26  of  the  Laws  of  Wisbuy  apportions  the  loss  as 
between  the  two  ships,  but  only  in  cases  of  accident,  not  in 
case  of  fault.  On  the  other  hand,  title  7,  §§  10,  11,  of  the 
Ordonnance  of  Louis  XIV,  provides: 

"X.  In  case  of  ships  running  aboard  each  other,  the  dam- 
age shall  be  equally  sustained  by  those  that  have  suffered 
and  done  it,  whether  during  the  course,  in  a  road,  or  in  a 
harbour. 

"XI.  But  if  the  damage  be  occasioned  by  either  of  the 
masters,  it  shall  be  repaired  by  him." 


316  DAMAGES   IN   COLLISION   CASES  (Ch.  14 

Thus  it  is  clear  that  the  application  of  the  rule  in  modern 
times  is  much  narrower  than  it  was  in  its  origin. 

An  examination  of  these  old  codes  reveals  another  im- 
portant fact  in  relation  to  it,  and  that  is  that  it  originated 
not  in  the  law  of  torts,  but  in  the  law  of  average.  It  is  un- 
der that  head  in  the  Ordonnance  of  Louis  XIV,  and  the 
language  of  the  others  shows  that  it  was  treated  as  a  con- 
tribution, and  not  as  a  liability  on  the  ground  of  tort.  The 
importance  of  this  will  appear  in  an  early  connection. 

The  doctrine  of  an  equal  division,  no  matter  how  the 
fault  may  compare,  is  so  well  settled  by  repeated  decisions 
that  it  can  hardly  be  considered  open  to  question.  There 
is  one  case  in  which  the  court  refused  to  apply  it.  In  the 
VICTORY,20  which  was  a  collision  between  two  English 
ships  in  Norfolk  harbor,  the  District  Court  decided  the  Vic- 
tory alone  at  fault.  An  appeal  was  taken,  and  the  case 
hotly  contested  in  the  Circuit  Court  of  Appeals  on  the  main 
question  of  fault,  no  question  as  to  the  apportionment  of 
damage  being  raised  either  in  the  record  or  briefs.  The 
Circuit  Court  of  Appeals  reversed  the  decision  of  the  Dis- 
trict Court  on  the  facts,  and  held  both  at  fault,  but  the  fault 
of  the  Victory  to  be  the  more  flagrant  of  the  two ;  and  it  ap- 
portioned the  loss  by  making  the  owners  of  the  Victory  pay 
the  full  value  of  their  vessel,  and  the  owners  of  the  Plym- 
othian  merely  pay  the  deficit  sufficient  to  satisfy  the  cargo 
owners  in  full.  A  certiorari  was  applied  for  and  obtained, 
and  the  case  was  argued  in  the  Supreme  Court,  but  that 
tribunal  held  the  Victory  alone  at  fault,  and  reversed  the- 
decision  of  the  Circuit  Court  of  Appeals,  so  that  the  judg- 
ment of  the  latter  on  that  question  can  hardly  be  considered 
a  precedent  on  the  question  of  the  proper  method  of  appor- 
tioning the  damage. 

20  (D.  C.)  63  Fed.  631;  Td.,  OS  Fed.  395,  15  C.  C.  A.  490;  Id.,  1G8 
T".  S.  419,  18  Sup.  Ct.  149,  42  L.  Ed.  519;  C.  R.  Hoyt  (D.  C.)  136 
Fed.  071. 


§  147)  BOTH  IN   FAULT  317 

The  reason  given  by  Dr.  Lushington  for  an  equal  divi- 
sion, even  where  the  fault  is  unequal,21  is  the  impossibili- 
ty of  apportioning  accurately  under  such  circumstances,  and 
the  uncertainty  which  it  would  introduce  into  litigation. 
No  two  judges  might  agree  as  to  the  exact  proportions  to 
be  made,  and  it  would  be  impossible  for  counsel  in  any  col- 
lision case  to  advise  with  any  degree  of  accuracy. 

A  modification  of  the  old  rule  that  contributory  negli- 
gence defeats  recovery  has  been  recently  attempted  in  some 
of  the  common-law  courts  by  the  introduction  of  the  doc- 
trine of  comparative  negligence,  which  is  intended  to  allow 
a  jury  to  apportion  the  damages  according  to  the  degree  of 
fault.  The  uncertainties  arising  from  it,  and  the  increase 
of  litigation  attendant  upon  all  uncertainty,  have  prevented 
its  general  adoption ;  and,  even  as  to  the  jurisdictions  that 
have  adopted  it,  the  opinion  of  a  distinguished  text-writer 
is  that  it  has  caused  more  confusion  than  benefit.22 

This  question  has  received  a  great  deal  of  discussion  in 
the  past  few  years  as  an  academic  question  among  mari- 
time writers,  but,  so  far  as  the  decisions  are  concerned,  it  is 
so  well  settled  that  only  statutory  enactment  could  change 
it.23 

It  must,  however,  be  admitted  that  there  is  a  tendency  in 
modern  legislation  to  extend  this  doctrine  of  comparative 
negligence,  as  is  shown  by  the  statutes  regulating  the  rights 
of  employes  of  carriers.  An  old  English  writer  once  re- 
marked that  the  measure  of  equity  rights  by  the  chancel- 
lor's conscience  was  about  as  certain  as  if  it  had  been  by  the 
length  of  his  foot.  Whether  the  fancied  attainment  of  a 
nearer  measure  of  justice  is  worth  the  uncertainty  in  the 
application  of  such  a  rule  by  judges  or  juries  remains  to 
be  seen. 

21  Milan,  Lush.  388. 

22  2  Wood,  R.  R.  (Ed.  1894)  p.  1506,  §  322b. 

23  Atlas,  93  U.  S.  302,  23  L.  Ed.  863;  Jacobsen  v.  Dalles  P.  &  A. 
Nav.  Co.  (D.  C.)  106  Fed.  428 ;    Id.,  114  Fed.  705,  52  C.  C.  A.  407. 


•>18  DAMAGES  IN   COLLISION   CASES  (Ch.  14 

In  England  the  equal  division  rule  in  cases  of  unequal 
fault  has  been  abolished  by  the  Maritime  Conventions  Act, 
1911,  which  apportions  the  loss  according  to  the  degree  of 
fault. 

Where  more  than  two  vessels  are  involved,  the  apportion- 
ment is  made  among  all  actually  at  fault.24 

In  America  the  costs  are  divided  like  the  damages,25  in 
England  each  side  pays  his  own  costs.26 


RIGHTS  OF  THIRD  PARTY  WHERE  BOTH  IN 
FAULT 

148.  An  innocent  third  party  can  recover  against  both  ves- 
sels, but  the  form  of  his  decree  is  not  a  general 
decree  against  both,  but  a  decree  for  half  against 
each  with  a  remedy  over  against  the  other  for  any 
deficiency. 

In  England,  in  such  cases,  he  can  recover  only  half 
against  each,  and  cannot  make  up  his  deficit  against  the 
other;  and  in  case  of  a  collision  between  two  English  ships 
on  the  high  sea,  an  American  court  will  apply  the  English 
rule.27 

24  Eugene  F.  Moran  v.  New  York  Cent.  &  H.  R.  R.  Co.,  212  U. 
S.  466,  29  Sup.  Ct.  339,  53  L.  Ed.  600;  Maling  (D.  C.)  110  Fed.  227; 
S.  A.  McCaulley  (D.  C.)  116  Fed.  107  (reversed  on  facts  in  Pacific, 
154  Fed.  943,  83  C.  C.  A.  515) ;  .Manhattan  (D.  C.)  181  Fed.  229  (re- 
versed on  facts  1S6  Fed.  329,  108  C.  C.  A.   107). 

25  America,  92  U.  S.  432,  23  L.  Ed.  724;  Frank  S.  Hall  (D.  C.) 
128  Fed.  816 ;    Garden  City  (D.  C.)  236  Fed.  302. 

2«Marpesia,  L.  R.  4  P.  C.  212;  City  of  Manchester,  5  P.  D.  221; 
Rosalia,  [1912]  P.  109;    Cardiff  Hall,  [1918]  P.  56. 

-7  Eagle  Point,  142  Fed.  453,  73  C.  C.  A.  569;  Ralll  v.  Societa 
Anonima  Di  Navigazlone  a  Vapore  G.  L.  Premuda  (D.  C.)  222  Fed. 
994.  For  the  English  and  American  rules  compared,  and  the  ef- 
fect of  the  Maritime  Conventions  Act,  1911,  on  the  recovery,  see 
Marsden  on  Collisions  (7th  Ed.)  148,  153. 


§  148)       RIGHTS  OF  THIRD  PARTY  WHERE  BOTH  IN  FAULT       319 

The  form  of  this  decree  shows  that  the  doctrine  did  not 
find  its  origin  in  the  law  of  torts,  although  many  judges 
speak  of  the  two  vessels  as  joint  tort-feasors.  The  Supreme 
Court  has  sedulously  guarded  the  form  of  this  decree,  even 
correcting  it  in  some  instances  where  the  question  was  not 
a  material  one,  as  the  values  were  sufficient.  This  form  of 
decree  was  announced  in  the  Washington,28  which  was  a 
case  of  a  passenger  on  a  ferryboat  injured  by  the  joint  neg- 
ligence of  his  boat  and  another  vessel. 

In  the  Alabama,29  a  vessel  in  tow  was  injured  by  the  joint 
negligence  of  her  tug  and  another  vessel.  The  court  gave 
the  decree  in  the  form  above  stated. 

But  this  is  a  rule  intended  to  do  justice  as  between  the 
wrongdoers,  and  will  not  be  so  applied  as  to  deprive  an  in- 
nocent party  of  his  right  of  full  recovery.  Hence,  in  the 
ATLAS,30  a  shipper  on  one  of  two  vessels,  both  of  which 
were  in  fault,  proceeded  against  one  vessel  alone,  and  it  was 
held  that  he  was  entitled  to  do  so,  and  to  recover  his  full 
damage  from  that  vessel.  The  question  is  thoroughly  dis- 
cussed in  the  opinion  delivered  by  Mr.  Justice  Clifford,  who 
seems  to  treat  it  as  much  on  the  basis  of  an  average  contri- 
bution as  upon  the  basis  of  a  tort;  that  average  contribu- 
tion, however,  to  be  applied  simply  as  between  the  two  in 
fault.31 

289  Wall.  513,  19  L.  Ed.  7S7. 
29  92  U.  S.  695,  23  L.  Ed.  7G3. 
3  0  93  U.  S.  302,  23  L.  Ed.  863. 

3i  See,  also,  Sterling,  106  U.  S.  647,  1  Sup.  Ct.  89,  27  L.  Ed.  9S ; 
New  York,  175  U.  S.  187,  20  Sup.  Ct.  67,  44  L.  Ed.  126. 


320  DAMAGES   IN   COLLISION   CASES  (Ch.  14 

CONTRIBUTION  BETWEEN  COLLIDING  VESSELS 
—ENFORCEMENT  IN  SUIT  AGAINST 
BOTH 

149.  Where  both  are  negligent,  and  have  been  brought  be- 

fore the  court  by  a  joint  libel  against  both,  this  con- 
tribution will  be  enforced. 

Under  the  cases  cited  in  a  previous  discussion,  the  form 
of  the  decree  by  which  the  third  party  is  simply  given  a  de- 
cree for  half,  with  a  contingent  remedy  over,  is  itself  an  en- 
forcement of  the  right  of  contribution.  At  common  law, 
in  cases  where  no  contribution  existed  as  between  wrong- 
doers, the  decree  was  in  solido  against  each,  and,  if  the 
plaintiff  levied  his  execution,  and  made  his  money  out  of 
one,  that  one  could  not  compel  the  other  to  pay  his  part. 
These  different  forms  of  judgment  or  decree  show  the  dif- 
ference in  the  origin  of  the  two  doctrines  at  common  law 
and  in  admiralty. 

SAME— ENFORCEMENT  BY  BRINGING  IN  VESSEL 
NOT  PARTY  TO  SUIT 

150.  Under  the  fifty-ninth  admiralty  rule,  where  the  third 

party  has  proceeded  against  only  one,  that  one 
can,  by  petition,  obtain  process  to  bring  in  the  other 
vessel,  if  within  reach  of  process. 

This  fifty-ninth  rule  in  admiralty  was  promulgated  on 
March  26,  1883.32  It  was  the  outgrowth  of  the  decisions  in 
reference  to  the  form  of  decree,  and  was  intended  to  pre- 
vent the  injustice  of  leaving  to  the  caprice  of  the  libelant 
which  of  two  colliding  vessels  he  should  hold.     Just  prior 

§  150.     a2  112  U.  S.  743,  29  Sup.  Ct.  xlvi,  post,  p.  530. 


§  151)        CONTRIBUTION   BETWEEN   COLLIDING   VESSELS  321 

to  its  promulgation  the  HUDSON  33  had  been  decided  by- 
District  Judge  Brown  in  the  District  Court  for  the  South- 
ern District  of  New  York.  In  that  decision  Judge  Brown 
sustained  a  motion  to  bring  in  as  defendant  one  of  the  two 
vessels  that  was  not  before  the  court,  and  in  doing  so  ren- 
dered an  opinion  as  to  the  advantages  of  the  procedure  and 
the  relative  rights  of  the  two  colliding  vessels  in  such  cases. 
His  learned  discussion,  boHi  of  the  English  and  American 
authorities,  treats  the  matter  rather  as  a  matter  of  contri- 
bution or  average  than  a  matter  of  joint  tort.  Hence, 
where  vessels  are  in  the  jurisdiction,  the  fifty-ninth  rule  per- 
mits a  proceeding  against  the  vessel  not  sued,  which  prac- 
tically makes  an  average  adjustment,  so  to  speak,  of  the  loss 
among  the  parties  liable.  Hence  the  right  of  contribution 
is  clear  in  two  classes  of  cases :  First,  those  in  which  both 
vessels  are  sued,  and  it  can  be  brought  about  by  the  form 
of  decree  or  by  recoupment ;  and,  second,  those  in  which 
only  one  vessel  is  sued,  and  the  other  vessel  is  within  reach 
of  the  court's  process. 

SAME— ENFORCEMENT  BY  INDEPENDENT  SUIT 

151.  On  the  above  principles,  the  right  of  contribution 
ought  to  exist  between  the  two  vessels  by  inde- 
pendent suit ;  and  this  right  is  settled  by  the  later 
authorities. 

The  above  discussion  leaves  open  the  case  of  suit  against 
one  vessel  by  the  third  party  when  the  other  vessel  is  not 
within  the  jurisdiction,  and  cannot  be  reached  by  process 
under  the  fifty-ninth  rule.  Suppose  that  in  such  a  case  the 
libelant  gets  a  full  decree  against  the  vessel  before  the  court, 
and  compels  payment,  can  that  vessel  institute  an  inde- 
pendent suit  against  the  other  vessel,  and  compel  it  to  pay 
its  portion? 

33  (D.  C.)  15  Fed.  1G2. 

Hughes, Adm. (2d  Ed.) — 21 


322  DAMAGES   IN   COLLISION   CASES  (Ch.  14 

There  are  decisions  to  the  effect  that  such  a  remedy  does 
not  lie. 

In  the  Argus,34  in  the  District  Court  for  the  Eastern  Dis- 
trict of  Pennsylvania,  a  dredge  in  tow  of  a  tug  collided  with 
a  steamer.  The  tug  was  operating  the  dredge  under  a  con- 
tract between  the  owners  by  which  the  movements  of  the 
tug  were  controlled  entirely  by  the  tow.  The  owners  of 
the  dredge  proceeded  in  New  York  against  the  steamer  and 
tug  for  damages,  but  the  tug  was  not  served  with  process, 
and  the  dredge  owners  recovered  their  full  damages  from 
the  steamer.  Thereupon  the  steamer  paid  the  damages, 
and  libeled  the  tug  in  the  District  Court  of  Pennsylvania  to 
compel  her  to  pay  her  share.  The  District  Court  held  that 
there  was  no  direct  remedy  by  the  steamer  against  the  tug ; 
that,  if  she  had  any  right  at  all,  it  must  be  by  way  of  substi- 
tution to  the  lien  which  the  libelant  had  asserted ;  and  that 
in  that  special  case  the  libelant  was  debarred  from  pro- 
ceeding against  the  tug,  as  the  management  of  the  tug  was 
solely  in  charge  of  his  own  officers.  The  opinion  assumes, 
without  discussion,  that  in  the  case  of  joint  tort-feasors 
there  is  no  recovery. 

In  the  Mariska,35  in  the  District  Court  for  the  Northern 
District  of  Illinois,  it  was  held  that  admiralty  rule  59  was  not 
intended  to  give  a  subsequent  proceeding  of  this  sort,  and 
that,  independent  of  that  rule,  it  was  a  case  of  joint  tort- 
feasors, as  to  which  there  was  no  contribution. 

This  was  reversed  on  appeal,  but  the  ground  of  the  opin- 
ion in  the  appellate  court  was  given  rather  as  a  right  deriv- 
ative by  subrogation  than  as  an  independent  right  of  ac- 
tion. 

Both  these  cases  assume  that  if,  at  common  law,  a  loss  is 
caused  by  negligence,  it  is  a  case  of  joint  tort,  as  to  which 
there  is  no  contribution. 


8  151.     a*  (D.  C.)  71  Fed.  891. 

88  (D.   C.)   100  Fed.   500,   reversed    107    Fed.   9^9    47   O.    0.   A.   115. 


§  151)        CONTRIBUTION   BETWEEN   COLLIDING   VESSELS  323 

Even  at  common  law  this  assumption  is  erroneous.  The 
rule  that  there  is  no  contribution  among  joint  tort-feasors, 
according-  to  the  better  authority,  in  the  common-law  courts 
applies  only  in  cases  where  there  was  some  intentional  or 
moral  wrong  committed.  It  presupposes  an  evil  intent,  and 
as  to  such  cases  it  was  certainly  a  wise  rule.  But  the  bet- 
ter authority  is  that  this  doctrine  does  not  apply  where  the 
injury  was  unintentional,  but  arose  merely  from  negligence, 
or  the  operation  of  some  rule  of  law.36 

The  subject  has  been  considered  in  England  in  Palmer  v. 
Wick  &  P.  Steam  Shipping  Co.37  In  it  the  question  is  dis- 
cussed mainly  with  reference  to  the  law  of  Scotland,  but  in 
some  of  the  opinions  the  old  English  authorities  in  which 
the  doctrine  originated  are  reviewed  and  distinguished. 

It  is  considered  also  by  Judge  Brown  in  the  HUDSON, 
supra,  who  arrived  at  the  same  conclusion  with  reference  to 
the  common-law  doctrine  as  that  above  announced.  But 
the  weight  of  English  authority  is  against  contribution.38 

In  Armstrong  County  v.  Clarion  County,39  a  traveler  was 
injured  by  the  defective  condition  of  a  bridge  maintained 
jointly  by  two  counties.  He  sued  one  county,  and  recov- 
ered. Thereupon  this  county  sued  the  other,  and  the  court 
sustained  its  right  to  contribution,  holding  that  the  com- 
mon-law rule  gave  contribution  where  the  act  that  was  be- 
ing done  was  not  unlawful,  and  that  contribution  arises 
from  natural  principles,  and  not  from  contract. 

In  the  Gulf  Stream,40  where  certain  shippers  had  sued 
both  vessels  in  a  collision,  one  of  the  vessels  compromised 

3  6  Pol.  Torts,  171;    12  Harvard  Law  Rev.  176  (189S) ;    Law  Quar- 
terly Rev.  (July,  1901)  293. 
3  7  [1894]  A.  C.  318. 
ss  Frankland,  [1901]  P.  161,  and  cases  cited. 

39  66  Pa.  218,  5  Am.  Rep.  368.  On  this  subject  of  contribution  at 
common  law,  see  the  note  to  the  case  of  Kirkwood  v.  Miller,  5  Sneed. 
(Tenn.)  455,  73  Am.  Dec.  147. 

40  (D.  C.)  5S  Fed.  004. 


324  DAMAGES   IN   COLLISION   CASES  (Ch.  14 

a  good  many  of  the  claims  at  a  considerable  discount,  and 
attempted  to  set  off  their  full  value  against  the  other  ves- 
sel in  a  settlement  between  them.  The  court  held  that  the 
parties  occupied  in  the  admiralty  towards  each  other  some- 
what the  relation  of  cosureties,  and  that  the  other  vessel 
was  entitled  to  the  benefit  of  these  compromises.  And  in 
the  NORTH  STAR,41  previously  cited,  the  opinion  reviews 
the  old  admiralty  codes  on  the  subject,  and  shows  that  the 
doctrine  of  division  of  loss  in  admiralty  cases  arose  out  of 
the  principles  of  general  average,  as  has  been  heretofore 
discussed. 

If  these  last  three  cases  are  right,  it  follows  that  an  ac- 
tion for  contribution  ought  to  lie  by  one  vessel  against  the 
other.  The  fact  that  there  is  no  privity  between  them  is 
immaterial ;  for  general  average  and  contribution  do  not 
depend  upon  questions  of  privity  or  contract,  but  upon  prin- 
ciples of  natural  justice.  t Indeed,  the  fact  that  they  were 
not  intentionally  concurring  in  the  act  complained  of  is  the 
reason  why  there  should  be  a  contribution,  and  why  the 
common-law  rule  does  not  apply.  Hence  the  reasoning  of 
the  Pennsylvania  judge  42  that  the  right  could  only  be 
claimed  derivatively  through  the  libelant  is  counter  to  the 
original  principles  on  which  the  doctrine  was  based.  It 
arose  from  a  desire  of  the  admiralty  courts  to  adjust  equita- 
bly the  relations  between  the  two  vessels  themselves,  and 
not  through  any  consideration  of  the  rights  of  a  third  party 
against  them,  for  his  rights  are  unaffected  by  the  doctrine. 
And  the  other  reason  given  in  the  two  cases  above  cited, 
holding  the  adverse  doctrine  that  there  is  no  contribution 
against  tort-feasors,  is  counter  to  the  preponderance  of  au- 
thority, even  at  common  law,  which  is  to  the  effect  that, 
where  the  act  was  not  intentional,  there  may  be  a  contribu- 
tion between  tort-feasors. 

On  principle  such  a  suit  should  lie  in  the  admiralty.     If 

«  106  U.  S.  17,  1  Sup.  Ct.  41,  27  L.  Ed.  91. 

<^  In  the  Argus  (D.  C.)  71  Fed.  891,  supra,  i>.  322. 


§  151)        CONTRIBUTION   BETWEEN   COLLIDING   VESSELS  325 

the  Supreme  Court,  by  rule,  can  confer  jurisdiction  on  an 
admiralty  court  to  bring  the  other  vessel  in  by  petition,  as 
is  done  by  the  fifty-ninth  rule,  that  shows  that  the  right  is 
one  of  admiralty  character,  for  a  Supreme  Court  cannot,  by 
rule,  make  a  thing  maritime  which  is  not  so  by  nature.  It 
can  only  give  a  maritime  remedy  to  a  right  maritime  by  na- 
ture. It  has  been  seen  in  another  connection  that,  where  a 
salvor  collects  the  entire  salvage  due,  his  cosalvors  can  sue 
him  in  admiralty  to  enforce  an  apportionment  or  contribu- 
tion,43 and  this  is  a  similar  case.  Admiralty  has  undoubt- 
ed jurisdiction  to  compel  contribution  in  cases  of  general 
average,  and  the  doctrine  now  under  discussion  originated 
in  the  law  of  average.44  Hence  contribution  may  be  en- 
forced in  an  admiralty  proceeding,  probably  in  rem,  and 
certainly  in  personam,  as  between  the  owners  of  two  col- 
liding ships  where  one  had  been  compelled  to  pay  more  than 
his  share.  It  is  a  necessary  corollary  from  the  doctrine 
that  a  decree  is  for  half  against  each  with  a  remedy  over, 
thus  making  it  a  case  where  one  is  necessarily  surety  for 
the  other  in  case  of  a  deficit.  The  right  has  been  definitely 
settled  accordingly  by  two  recent  decisions  of  the  Supreme 
Court.45 

Both  these  cases  were  libels  in  personam,  but  no  reason  is 
perceived  why  the  right  could  not  be  enforced  by  a  pro- 

"  Ante,  p.  151. 

44  Ante,  p.  50. 

4o  Erie  R.  Co.  v.  Erie  &  W.  Transp.  Co.,  204  IT.  S.  220,  27  Sup.  Ct. 
246,  51  L.  Ed.  450 ;  Lehigh  Valley  R.  Co.  v.  Cornell  Steamboat  Co., 
218  U.  S.  264,  31  Sup.  Ct.  17,  54  L.  Ed.  1039,  20  Ann.  Cas.  1235.  In 
both  these  cases  the  opinions  merely  say  that  this  doctrine  of  con- 
tribution is  of  admiralty  origin,  without  stating  whether  it  arose 
from  average  or  tort.  They  could  not  have  treated  it  as  a  case  of 
joint  liability  in  tort ;  for  it  would  have  been  inconsistent  with 
Union  Stockyards  Co.  v.  Chicago,  B.  &  Q.  R.  Co.,  196  U.  S.  217,  25 
Sup.  Ct.  226,  49  L.  Ed.  453,  2  Ann.  Cas.  525,  in  which  the  court 
adopted  the  rule  of  no  contribution  among  negligent  tort-feasors  at 
common  law.  See,  also,  Eastern  Dredging  Co.,  In  re  (D.  C.)  1S2 
Fed.  179. 


326  DAMAGES   IN   COLLISION   CASES  (Ch.  14 

ceeding  in  rem.  The  liability  to  the  party  paying  more  than 
his  share  arises  from  a  maritime  tort  of  the  other  vessel 
or  those  responsible  for  her  navigation.  If  such  a  remedy  is 
available  in  rem  under  the  fifty-ninth  rule,  it  ought  to  lie  in 
this  analogous  case. 

MEASURE  OF  DAMAGES 

152.  The  damages  assessable  in  collision  cases  are  those 

which  are  the  natural  and  proximate  result  of  the 
collision. 

This  subject  must  be  considered — First,  in  reference  to 
the  cases  where  the  loss  is  total;  second,  in  reference  to  the 
cases  where  the  loss  is  partial;  third,  what  damages  are 
proximate  or  remote. 

SAME— WHEN   LOSS   TOTAL 

153.  If  the  loss  is  total,  the  amount  recoverable  by  the  ves- 

sel owner  is  the  market  value  of  the  vessel  at  the 
time  of  the  collision,  if  that  is  ascertainable,  and 
her  net  freight  for  the  voyage.40 

Where  a  ship  cannot  be  said  to  have  a  market  value,  the 
method  of  fixing  her  value  is  a  question  of  fact,  depending 
on  the  circumstances  of  the  particular  case.  Her  original 
cost,  less  proper  deductions  for  depreciation,  is  evidence, 
though  not  conclusive  or  exclusive,  of  her  value.47 

The  net  freight  allowed  in  cases  of  total  loss  is  the  net 

§  153.  *6  BALTIMORE,  8  Wall.  377,  10  L.  Ed.  463;  Laura  Lee 
(D.  O.)  24  Fed.  483 ;  Fabre  v.  Cunard  S.  S.  Co.,  53  Fed.  288,  3  C.  C. 
A.  534;  UMBRIA,  166  U.  S.  404.  17  Sup.  Ct.  610,  41  L.  Ed  1053: 
Alaska  S.  S.  Co.  v.  Inland  Nav.  Co.,  211  Fed.  840,  12S  C,  C.  A.  366; 
Philadelphia,  [1017]  P.  101. 

'•  Lucille  (D.  C.)  169  Fed.  710:  Samson,  217  Fed.  :U4,  133  C.  C. 
A.  260;    Harmonldea  [1903]   P.  1. 


§  153)  MEASURE   OF  DAMAGES  327 

freight  for  the  voyage  broken  up.  Profits  on  a  future  char- 
ter, not  entered  upon,  are  too  remote.48 

In  the  Kate,49  the  vessel  was  on  her  way  to  perform  a 
charter  party  when  she  was  lost.  The  court  rather  varied 
the  general  rule  by  permitting  recovery  of  her  value  at  the 
end  of  the  voyage,  and  the  profit  under  that  charter  party, 
as  it  had  already  been  entered  upon.  On  the  other  hand,  in 
the  Hamilton,60  the  value  of  the  vessel  at  the  beginning  of 
the  voyage  was  allowed,  and  interest  from  that  date,  but 
not  the  profits  of  the  charter  party  which  she  then  had, 
though  she  had  entered  upon  it. 

In  case  of  a  total  loss  of  cargo,  the  value  recoverable  is 
the  value  at  place  of  shipment,  with  all  expenses  added  ;  but, 
if  the  loss  is  only  partial,  the  net  values  saved  must  be  cred- 
ited.51 

The  fact  that  a  vessel  is  sunk  does  not  necessarily  make 
the  loss  a  total  one.  The  owner  must  make  some  effort  to 
find  out  whether  she  can  be  saved  or  not,  but,  if  he  shows 
an  unsuccessful  effort  to  induce  salvors  to  raise  her,  it  shifts 
to  the  respondent  the  burden  to  show  that  the  loss  was  not 
total.52 

48  UMBRIA,  166  U.  S.  404,  17  Sup.  Ct.  610,  41  L.  Ed.  1053;  Kate, 
[1899]  P.  165;  George  W.  Roby,  111  Fed.  601,  49  O.  C.  A.  481; 
Menominee  (D.  C.)  125  Fed.  530. 

49  [1899]  P.  165.     See,  also,  Racine,  [1906]  P.  273. 
so  (D.  C.)  95  Fed.  844. 

6i  Scotland,  105  U.  S.  24,  26  L.  Ed.  1001;  George  Bell  (D.  C.)  3 
Fed.  5S1,  5  Hughes,  172 ;    Umbria,  59  Fed.  489,  8  C.  C.  A.  194. 

52  Normandie  (D.  C.)  40  Fed.  590;  Id.  (D.  C.)  43  Fed.  151;  Ernest 
A.  Hamill  (D.  C.)  100  Fed.  509;  Des  Moines,  154  U.  S.  584,  14  Sup. 
Ct.  1168,  20  L.  Ed.  821. 


328  DAMAGES  IN   COLLISION   CASES  (Ch.  14 


SAME— WHEN   LOSS  PARTIAL 

154.  In  case  of  a  partial  loss,  the  amount  recoverable  is  the 
cost  of  saving  the  vessel,  the  repair  and  expense 
bills  caused  by  the  collision,  and  a  reasonable  al- 
lowance for  the  loss  of  the  use  of  the  vessel  during 
any  delay  caused  by  the  collision. 

There  is  usually  but  little  difficulty  in  settling  the  items 
for  actual  repairs.  The  fight  generally  turns  on  the  amount 
that  should  be  allowed  for  the  loss  of  the  vessel's  use,  or 
demurrage,  as  it  is  frequently,  though  inaccurately,  called. 

The  sum  to  be  allowed  is  the  actual  loss  caused  to  the 
owner  by  being  deprived  of  his  vessel.  This  is  a  question 
of  fact,  and  is  often  difficult  of  ascertainment. 

The  demurrage  rate  specified  in  a  bill  of  lading  or  charter 
party  is  not  the  measure  of  damages,  though  it  may  be  com- 
petent evidence.53 

If  the  vessel  is  actually  under  charter,  the  amount  pay- 
able per  day  is  strong  evidence  of  her  value.54 

When,  however,  the  vessel  is  being  operated  by  her  own- 
er, the  method  of  fixing  the  rate  varies  greatly. 

In  the  Potomac55  a  vessel  engaged  in  a  particular  busi- 
ness was  allowed  the  daily  average  of  her  net  profits  for  the 
season. 

In  such  cases  the  rate  differs  from  that  in  case  of  total 
loss  for  under  partial  loss  cases  the  future  profits  on  a 
charter  may  be  allowed.56 

Where  no  charter  rate  can  be  fixed,  the  courts  hold  that 

§  154.     03  Hermann,  4  Blatchf.  441,  Fed.  Cas.  No.  6,40S. 

04  Margaret  J.  Sanford  (C.  C.)  37  Fed.  148;  Brand,  224  Fed.  391, 
140  C.  C.  A.  77,  Ann.  Cas.  1917B,  99G. 

05  105  U.  S.  G30,  26  L.  Ed.  1194;  Europe,  199  Fed.  475,  111  C.  C. 
A.  307. 

seArgentlno,  11  A.  C.  519;  UMBRIA,  166  U.  S.  421,  17  Sup.  Ct. 
610,  41  L.  Ed.   1053. 


§  154)  MEASURE   OF  DAMAGES  329 

one  good  way  of  fixing  the  damage  is  to  take  the  vessel's 
average  earnings  about  the  time  of  the  collision.57 

A  company  which  keeps  a  spare  boat  can  still  recover  for 
the  loss  of  use  of  their  steamer,  though  the  spare  boat  took 
its  place.58 

As  these  damages  are  allowed  simply  to  make  up  to  the 
owner  any  pecuniary  loss  to  which  he  may  be  put  by  being 
deprived  of  the  use  of  his  vessel,  it  follows  that  no  allowance 
for  loss  of  time  can  be  recovered  in  case  of  a  vessel  not 
operated  for  profit,  but  pleasure — like  a  private  yacht — or  of 
vessels  not  in  operation.59 

On  the  other  hand,  in  the  Greta  Holme,60  the  trustees  of 
a  municipality  which  kept  a  steam  dredge  for  their  sole 
use  were  allowed  to  recover  for  the  time  lost  by  it  in  conse- 
quence of  a  collision  damage,  though  they  could  not  prove 
any  direct  pecuniary  loss.  They  did  prove,  however,  that 
the  filling  up  during  the  dredge's  absence  from  work  en- 
tailed additional  dredging  afterwards. 

Interest  on  the  value  from  the  date  of  collision  in  case  of 


57  CONQUEROR,  166  U.  S.  110,  17  Sup.  Ct.  510,  41  L.  Ed.  937; 
William  H.  Bailey  (D.  C.)  103  Fed.  799;  Bulgaria  (D.  C.)  83  Fed. 
312 ;  Tremont,  161  Fed.  1,  SS  C.  C.  A.  304 ;  Orion,  239  Fed.  301,  152 
C.  C.  A.  289. 

s  s  Cayuga,  14  Wall.  270,  20  L.  Ed.  82S;  Mediana,  [1899]  P.  127; 
Id.,  [1900]  A.  C.  113. 

so  CONQUEROR,  166  U.  S.  110,  17  Sup.  Ct.  510,  41  L.  Ed.  937; 
Saginaw  (D.  C.)  95  Fed.  703;  Wm,  M.  Hoag  (D.  C.)  101  Fed.  846; 
Fisk  v.  New  York  (D.  C.)  119  Fed.  256;  Loch  Trool  (D.  C.)  150  Fed. 
429.  In  Vanadis  (D.  C.)  250  Fed.  1010,  demurrage  was  allowed 
for  a  yacht  used  only  for  pleasure;  the  court  attempting  (not  very 
successfully)  to  distinguish  it  from  the  Conqueror  Case. 

so  [1897]  A.  C.  598.  The  tendency  of  the  more  recent  English  de- 
cisions has  been  to  allow  demurrage  for  loss  of  use  of  government 
ships,  though  no  actual  pecuniary  loss  is  directly  proved.  Marpessa, 
[1907]  A.  C.  241;  Astrakhan,  [1910]  P.  172.  Under  the  American 
decisions  the  government  can  recover  crew's  wages  and  keep  and 
other  actual  expenses,  but  not  demurrage.  A.  A.  Raven,  231  Fed. 
3S0,  145  C.  C.  A.  374. 


330  DAMAGES    IX    COLLISION    CASES  (Ql.  14 

total  loss,  and  on  each  item  in  case  of  partial  loss,  is  usually 
allowed,  though  its  allowance  is  a  matter  of  judicial  discre- 
tion.61 

In  estimating  the  cost  of  repairs,  the  fact  that  new  repairs 
make  the  vessel  more  valuable  than  she  was  before,  if  these 
new  repairs  were  necessary  to  restore  her,  does  not  cause 
any  deduction.  The  rule  of  one-third  off  new  for  old,  which 
has  been  adopted  by  the  insurance  companies,  does  not 
apply  in  collision  cases.62 

It  is  often  a  difficult  question  of  fact  how  far  the  recovery 
may  extend  when  the  vessel  is  old,  and  it  is  necessary  to  put 
in  a  good  deal  of  work  on  each  side  of  the  natural  wound 
in  order  to  make  the  repairs  hold.  As  a  rule,  the  cost  of 
repairing  adjacent  parts  is  not  recoverable,  provided  those 
adjacent  parts  were  not' in  good  condition.  If  the  vessel  is 
in  good  condition,  and  the  injury  is  such  that  repairs  to  ad- 
jacent parts  are  also  needed,  they  would  be  recoverable.63 


REMOTENESS    OF    DAMAGES— SUBSEQUENT 
STORM 

155.  If  a  vessel  partially  injured  is  so  crippled  by  a  colli- 
sion as  to  be  lost  in  a  subsequent  storm,  which  she 
could  otherwise  have  weathered,  that  is,  in  law, 
considered  as  proximately  arising  from  the  colli- 
sion. 

«i  Albert  Dumois,  177  U.  S.  240,  20  Sup.  Ct.  595,  44  L.  Ed.  751. 
The  trend  of  later  decisions  is  to  a  liberal  policy  in  its  allowance. 
Rickmers,  142  Fed.  305,  73  C.  C.  A.  415;  J.  G.  Gilchrist  (D.  C.)  17:5 
Fed.  666;  Id.,  183  Fed.  105,  105  C.  C.  A.  397;  Mary  B.  Curtis,  250 
Fed.  9,  162  C.  C.  A.  181;  Great  Lakes  Dredge  &  Dock  Co.,  In  re 
(D.  C.)  250  Fed.  916. 

62  BALTIMORE,  8  Wall.  377,  19  L.  Ed.  463. 

6i  John  R.  Penrose  (D.  C.)  86  Fed.  696;  Providence,  98  Fed.  133, 
38  O.  O.  A.  670. 


§  156)  REMOTENESS   OF  DAMAGES  331 

The  damages  recoverable,  as  in  common-law  cases,  are 
only  those  proximately  caused  by  the  collision.  This  is 
often  a  difficult  question,  and  the  decisions  are  not  always 
enlightening.  For  instance,  in  the  common-law  case  of 
Memphis  &  C.  R.  Co.  v.  Reeves,64  tobacco  which  did  not  go 
forward  as  fast  as  it  might  have  done  was  caught  in  a  flood, 
which  it  would  otherwise  have  escaped.  The  court  held 
that  the  proximate  cause  was  the  flood. 

In  the  Leland,65  a  vessel  injured  in  collision  while  mak- 
ing her  way  to  port  was  caught  in  a  storm,  and,  in  conse- 
quence of  her  crippled  condition,  was  totally  wrecked.  It 
was  contended  that  the  proximate  cause  of  her  main  dam- 
age was  the  storm,  but  the  court  held  that  it  was  the  colli- 
sion, and  that  the  vessel  at  fault  was  liable  for  the  entire 
loss. 

In  the  City  of  Lincoln,66  the  compass,  charts,  log,  and 
log  glass  of  a  bark  were  lost  in  a  collision.  On  making 
her  way  to  port,  she  grounded  on  account  of  the  lack  of 
these  requisites  to  navigation.  The  court  held  that  the  ad- 
ditional damage  received  in  grounding  was  due  proximately 
to  the  collision,  and  recoverable.67 

SAME— DOCTRINE  OF  ERROR  IN  EXTREMIS 

156.  If  a  vessel,  by  her  negligence,  places  the  other  in  a  per- 
ilous situation,  and  the  latter,  in  the  excitement, 
takes  the  wrong  course,  the  negligence  of  the  first 
is  considered  the  proximate  cause. 

This  is  the  "doctrine  of  error  in  extremis,"  and  applies, 
as  is  well  known,  to  all  cases  of  negligence.    The  reason  is 

§  155.     6  4  io  Wall.  176,  19  L.  Ed.  909. 

so  (D.  C.)  19  Fed.  771. 

ee  15  P.  D.  15. 

67  See,  also,  Boutin  v.  Rudd,  82  Fed.  6S5,  27  C.  C.  A.  526;  Onoko 
(D.  C.)  100  Fed.  477;  Id.,  107  Fed.  984,  47  C.  C.  A.  Ill;  Mellona,  3 
W.  Rob.  7;  Pensher,  Swa.  211;  Reiseher  v.  Borwick,  [1S94]  2  Q.  B. 
54S;    Bruxellerme,  [1908]  P.  312;   ante,  §  35,  p.  80. 


332  DAMAGES   IN   COLLISION   CASES  (Ch.  14 

that  it  is  not  right  to  expect  superhuman  presence  of  mind, 
and  therefore,  if  one  vessel  has,  by  wrong  maneuvers, 
placed  another  ship  in  a  position  of  extreme  danger,  that 
other  ship  will  not  be  held  to  blame  if  she  has  done  some- 
thing wrong,  and  has  not  been  maneuvered  with  perfect 
skill  and  presence  of  mind.08 

This  doctrine  has  been  enunciated  in  many  American 
cases.  Illustrations  may  be  found  in  the  cases  which  hold 
that  a  steamer  must  not  run  so  close  to  a  sailing  vessel  as 
to  cause  her  alarm  and  trepidation.69 

It  applies  just  as  well,  however,  to  steamers.70 
But  the  vessel  which  appeals  to  this  doctrine  must  show 
that  she  was  not  in  fault  herself.  She  cannot  claim  to  be 
free  from  negligence  at  the  last  moment  on  account  of  ex- 
citement, if  her  previous  maneuvers  have  brought  about  the 
critical   situation.71 

§  156.  6  8  Bywell  Castle,  4  P.  D.  219;  NICHOLS,  7  Wall.  656,  19 
L.  Ed.  157 ;  Maggie  J.  Smith,  123  U.  S.  349,  8  Sup.  Ct.  159,  31  L.  Ed. 
175 ;    Charles  Hubbard,  229  Fed.  352,  143  C.  C.  A.  472. 

69  Carroll,  8  Wall.  302,  19  L.  Ed.  392;  LUCILLE,  15  Wall.  676, 
21  L.  Ed.  247 ;  Nacoochee,  137  U.  S.  330,  11  Sup.  Ct.  122,  34  L.  Ed. 
687;   ante,  p.  2S0. 

to  Blue  Jacket,  144  U.  S.  371,  12  Sup.  Ct.  711,  36  L.  Ed.  469. 

7i  ELIZABETH  JONES,  112  U.  S.  514,  5  Sup.  Ct  468,  28  L.  Ed. 
812;  Protector,  113  Fed.  S6S,  51  C.  C.  A.  492;  Noreuga  (D.  C.)  211 
Fed.  356;    Manchioneal,  243  Fed.  801,  156  C.  C.  A.  313. 


§  157)  VESSEL  OWNERSHIP  333 


CHAPTER  XV 

OF   VESSEL   OWNERSHIP   INDEPENDENT   OF  THE   LIMITED 
LIABILITY  ACT 

157.  Method  by  Which  Title  to  Vessels  may  be  Acquired  or  Trans- 

ferred. 

158.  Relation  of  Vessel  Owners  Inter  Sese. 

159.  Relation  of  Vessel  Owners  as  Respects  Third  Parties. 

METHOD  BY  WHICH  TITLE  TO  VESSELS  MAY  BE 
ACQUIRED  OR  TRANSFERRED 

157.  Title  to  vessels  may  be  acquired  by  construction  or  by 
purchase. 
A  bill  of  sale  is  necessary  before  the  vessel  can  be  docu- 
mented  or   enjoy  the   privileges   of  an   American 
vessel,  but  not  for  the  transfer  of  title. 

A  prospective  vessel  owner  may  build  his  own  vessel, 
whether  individually  or  by  contract,  or  he  may  purchase  it 
from  some  one  else. 

The  question  when  title  passes  in  case  of  a  ship  under 
construction  is  one  of  intent  under  the  contract  of  construc- 
tion. The  fact  that  the  contract  price  is  payable  in  install- 
ments is  not  necessarily  an  indication  of  an  intent  that  title 
shall  pass  pro  tanto.1 

A  vessel  is  a  mere  piece  of  personal  property,  and  sale, 
accompanied  by  delivery,  will  pass  the  title.  Such  a  sale 
mav  be  proved  by  parol,  as  in  any  other  case  of  personalty.2 

§  157.  i  IT.  S.  v.  Ansonia  Brass  &  Copper  Co.,  218  U.  S.  452,  31  Sup. 
Ct.  49,  54  L.  Ed.  1107 ;  Poeonoket  (D.  C.)  67  Fed.  262  ;  Id.,  70  Fed.  640. 
17  C.  C.  A.  309 ;  Id.,  16S  U.  S.  707,  18  Sup.  Ct.  939,  42  L.  Ed.  1214. 
In  England  the  presumption  is  the  other  way.  Seath  v.  Moore,  11 
A.  C.  350,  3S0. 

2  Badger  v.  President,  etc.,  of  Bank  of  Cumberland,  26  Me.  42S ; 
Chadbourne  v.  Duncan,  36  Me.  89. 


334  VESSEL  OWNERSHIP  (Ch.15 

Section  4170  of  the  Revised  Statutes  of  the  United  States 
provides : 

"Whenever  any  vessel,  which  has  been  registered,  is,  in 
whole  or  in  part,  sold  or  transferred  to  a  citizen  of  the  Unit- 
ed States,  or  is  altered  in  form  or  burden,  by  being  length- 
ened or  built  upon,  or  from  one  denomination  to  another, 
by  the  mode  or  method  of  rigging  or  fitting,  the  vessel  shall 
be  registered  anew,  by  her  former  name,  according  to  the 
directions  hereinbefore  contained,  otherwise  she  shall  cease 
to  be  deemed  a  vessel  of  the  United  States.  The  former 
certificate  of  registry  of  such  vessel  shall  be  delivered  up  to 
the  collector  to  whom  application  for  such  new  registry  is 
made,  at  the  time  that  the  same  is  made,  to  be  by  him  trans- 
mitted to  the  register  of  the  treasury,  who  shall  cause  the 
same  to  be  canceled.  In  every  such  case  of  sale  or  trans- 
fer, there  shall  be  some  instrument  of  writing,  in  the  nature 
of  a  bill  of  sale,  which  shall  recite,  at  length,  the  certificate; 
otherwise  the  vessel  shall  be  incapable  of  being  so  register- 
ed anew."  s 

The  only  effect  of  not  having  the  required  bill  of  sale,  or 
of  having  a  bill  of  sale  without  the  certificate  set  out  in  it, 
is  to  cause  the  vessel  to  forfeit  its  rights  to  American  pa- 
pers.4 

In  order  to  make  this  title  binding  as  against  third  par- 
ties, it  must  be  recorded  in  the  custom  house.  Section  4192 
of  the  United  States  Revised  Statutes  provides : 

"No  bill  of  sale,  mortgage,  hypothecation,  or  conveyance 
of  any  vessel,  or  part  of  any  vessel,  of  the  United  States, 
shall  be  valid  against  any  person  other  than  the  grantor  or 
mortgagor,  his  heirs  and  devisees,  and  persons  having  ac- 
tual notice  thereof,  unless  such  bill  of  sale,  mortgage,  hy- 

s  U.  S.  Comp.  St  §  7751. 

*Amelie,  6  Wall.  18,  IS  L.  Ed.  806;  De  Wolf  v.  Harris,  4  Ma- 
son, 515,  Fed.  Cas.  No.  4,221;  Orlando  v.  Wooten  (D.  C.)  214  Fed. 
271.  A  bill  of  sale  need  not  be  under  seal.  Hunter  v.  Parker, 
7  M.  &  W.  322.  331. 


8  157)  METHODS   OF   TRANSFERRING   VESSELS  335 

pothecation,  or  conveyance  is  recorded  in  the  office  of  the 
collector  of  the  customs  where  such  vessel  is  registered  or 
enrolled.  The  lien  by  bottomry  on  any  vessel,  created  dur- 
ing her  voyage,  by  a  loan  of  money  or  materials  necessary 
to  repair  or  enable  her  to  prosecute  her  voyage,  shall  not, 
however,  lose  its  priority,  or  be  in  any  way  affected  by  the 
provisions  of  this  section."  5 

If  it  is  recorded  according  to  this  section,  it  is  binding  as 
to  third  parties,  though  not  indexed.6 

This  statute  has  been  held  constitutional  by  the  United 
States  Supreme  Court.7 

The  place  where  the  vessel  is  registered  or  enrolled  is 
regulated  by  section  4141  of  the  Revised  Statutes,  which 
says: 

"Every  vessel,  except  as  is  hereinafter  provided,  shall  be 
registered  by  the  collector  of  that  collection  district  which 
includes  the  port  to  which  such  vessel  shall  belong  at  the 
time  of  her  registry ;  which  port  shall  be  deemed  to  be  that 
at  or  nearest  to  which  the  owner,  if  there  be  but  one,  or, 
if  more  than  one,  the  husband  or  acting  and  managing 
owner  of  such  vessel,  usually  resides."  8 

These  statutes,  above  quoted,  which  in  terms  apply  to 
registered  vessels,  are  made  to  apply  to  enrolled  vessels  by 
section  4312  of  the  Revised  Statutes,  which  says: 

"In  order  for  the  enrollment  of  any  vessel,  she  shall  pos- 
sess the  same  qualifications,  and  the  same  requirements  in 
all  respects  shall  be  complied  with,  as  are  required  before 
registering  a  vessel ;  a^id  the  same  powers  and  duties  are 
conferred  and  imposed  upon  all  officers  respectively,  and 
the  same  proceedings  shall  be  had,  in  enrollment  of  vessels, 
as  are  prescribed  for  similar  cases  in  registering;  and  ves- 
sels enrolled,  with  the  masters  or  owners  thereof,  shall  be 

s  U.  S.  Comp.  St.  §  7778. 

e  W.  B.  Cole  (C.  C.)  49  Fed.  587:    Id.,  59  Fed.  1S2,  8  C.  C.  A.  78. 

t  WHITE'S  BANK  v.  SMITH,  7  Wall.  &46,  19  L.  Ed.  211. 

s  U.  S.  Comp.  St.  §  7719. 


336  VESSEL  ownership]  (Ch.  15 

subject  to  the  same  requirements  as  are  prescribed  for  reg- 
istered vessels."  9 

These  bills  of  sale  are  required  not  only  to  be  recorded, 
but  they  must  set  out  exactly  the  interest  of  each  person 
selling  and  each  person  purchasing.10 

A  vessel  engaged  in  foreign  trade  is  said  to  be  registered, 
one  engaged  in  the  coasting  or  internal  trade  on  navigable 
waters  of  the  United  States  is  said  to  be  enrolled,  and  one 
of  the  latter  class  under  twenty  tons  is  said  to  be  licensed.11 

RELATION  OF  VESSEL  OWNERS  INTER  SESE 

158.  Part   owners   of  a  vessel,  in  the  absence   of  special 
agreement,  are  tenants  in  common,  not  partners. 

The  presumption  is  in  favor  of  a  tenancy  in  common  and 
against  a  partnership,  though  the  latter  may  exist  by  spe- 
cial agreement.  This  has  been  settled  law,  both  in  Eng- 
land and  America,  for  a  long  time.12 

The  fact  that  a  vessel  is  run  on  shares  does  not  consti- 
tute the  part  owners  a  partnership.13 

Part  owners  have  no  lien  as  against  each  other  in  case 
one  pays  more  than  his  share  of  the  expenses  or  debts, 

o  U.  S.  Conip.  St.  §  S058. 

io  Rev.  St.  §§  4192-4196  (U.  S.  Comp.  St.  §§  777S-77S2). 

ii  Mohawk,  3  Wall.  56G,  18  L.  Ed.  67;  Montello,  11  Wall.  411,  20 
L.  Ed.  191.  The  vessels  entitled  to  American  papers  are  set  out  in 
section  4132  of  the  Revised  Statutes  (as  last  amended,  in  U.  S. 
Comp.  St.  §  7709).  The  form  of  register  is  given  in  section  4155  of 
the  Revised  Statutes  (U.  S.  Comp.  St.  §  7736) ;  the  form  of  enrolment 
in  section  4319  of  the  Revised  Statutes  (U.  S.  Comp.  St.  §  8065) : 
and  the  form  of  license  in  section  4321  of  the  Revised  Statutes  (U. 
S.  Comp.  St.  §  S0G9). 

§  158.  12  Bradshaw  v.  Sylph,  Fed.  Cas.  No.  1.791;  Revens  v.  Lew- 
is, 2  Taine,  202,  Fed.  Cas.  No.  11,711;  SPEDDEX  v.  KOENIG,  78 
FecL  504,  24  C.  C.  A.  189;  Briggs  &  Cobb  v.  Barnett,  10S  Va.  404, 
61   S.  B.  797. 

ia  Daniel  Kaine  (P.  C.)  35  Fed.  785. 


§  158)        RELATION   OF   VESSEL  OWNERS   ENTER   SESE  337 

though  the  one  so  paying  may  be  the  ship's  husband.  This 
question  was  long  a  subject  of  debate  in  the  courts,  but  the 
above  may  be  considered  as  the  settled  doctrine  now.14 

In  such  case,  however,  when  he  has  made  necessary  ad- 
vances for  the  common  benefit,  under  express  or  implied 
authority  to  do  so,  he  may  compel  contribution  from  the 
owners  for  such  advances ;  but  this  is  a  mere  matter  of  ac- 
counts, and  there  is  no  jurisdiction  in  admiralty  to  maintain 
such  a  suit.15 

The  complete  separation  of  vessel  and  owner  in  admiralty 
is  forcibly  illustrated  by  the  decisions  that  a  part  owner, 
who  happens  to  be  engaged  in  the  business  of  furnishing 
repairs  or  supplies  to  vessels,  may  libel  his  vessel  for  such 
repairs  and  supplies  so  furnished,  and  may  assert  a  lien 
against  his  other  part  owners  or  their  assignee,  but  not  to 
the  detriment  of  creditors  of  the  vessel  itself.  This  doc- 
trine must  be  carefully  distinguished  from  the  doctrine  an- 
nounced in  the  last  paragraph.  For  a  mere  balance  of  ac- 
counts there  is  no  right  of  action  in  admiralty,  but,  if  a  part 
owner  of  a  vessel  happens  to  keep  a  machine  shop,  and 
does  work  upon  the  vessel  on  the  credit  of  the  vessel,  there 
is  no  reason  why  he  should  not  be  allowed  to  libel  the  ves- 
sel, and  to  assert  such  a  maritime  cause  of  action  against  his 
other  part  owners.  But,  when  the  vessel  comes  to  be  sold, 
if  there  are  other  creditors,  it  would  be  inequitable  to  al- 
low the  part  owner,  who  himself  may  be  personally  bound, 
to  assert  a  lien  against  his  own  creditors ;  and  therefore 
the  doctrine  is  limited  to  an  assertion  of  it  in  subordina- 
tion to  the  claims  of  the  other  creditors  on  the  boat.16 


14  LARCH,  2  Curt.  427,  Fed.  Cas.  No.  8,0S5 ;  Daniel  Kaine  (D.  C.) 
35  Fed.  785. 

is  LARCH,  2  Curt.  427.  Fed.  Cas.  Xo.  8,085;  Orleans,  11  Pet.  175, 
9  L.  Ed.  G77. 

isPETTIT  v.  CHARLES  HEMJE,  5  Hughes,  359,  Fed.  Cas.  No. 
11,047a;  West  Friesland,  Swa.  454;  Learned  v.  Brown,  94  Fed.  876, 
Hughes. Adji.  (2d  Ed.)— 22 


338  VESSEL  OWNERSHIP  (Ch.  15 

The  decisions  on  this  question,  however,  are  not  har- 
monious ;  some  courts  confusing  it  with  the  doctrine  that 
there  is  no  jurisdiction  in  the  admiralty  as  to  accounts 
among  part  owners. 

But  there  are  many  cases  where  this  question  could  not 
possibly  be  involved,  like  a  personal  injury  claim,  a  claim 
for  loss  of  goods  shipped,  or  arising  out  of  a  collision. 
There  can  be  no  sound  reason  why  a  part  owner  should 
not  be  permitted  to  proceed  against  the  vessel  in  such  cas- 
es, always  in  subordination  to  other  debts  for  which  he 
is  also  responsible.17 

There  is  nothing  in  the  relation  of  part  owners  which 
makes  one  an  agent  for  the  other  any  more  than  there  is  in 
the  relation  of  tenants  in  common.  Hence  one  part  own- 
er, in  the  absence  of  some  authority,  express  or  implied, 
cannot  bind  the  other  part  owner  for  the  debts  of  the  ves- 
sel. If  cases  exist  in  which  the  other  part  owner  has  been 
held  bound,  it  will  be  found  that  there  was  some  course  of 
dealing  or  other  circumstance  tending  to  show  express  or 
implied  authority.18 

Disputes  often  arise  between  part  owners  as  to  the  meth- 
od of  using  their  vessel.  If  they  cannot  agree,  the  majority 
owner  can  take  the  vessel,  and  use  her,  and  in  such  case 
he  will  be  entitled  to  the  profits  of  the  voyage,  but  the  part 
owner  may  require  him  to  give  security  for  the  protection 
of  his  interest  in  the  vessel  against  loss,  and  admiralty  has 
jurisdiction  of  a  libel  to  compel  the  giving  of  such  securi- 
ty.19 

36  C.  C.  A.  524;  Fredericka  Sehepp  (D.  C.)  105  Fed.  623 ;  Puritan 
(D.  C.)  258  Fed.  271. 

17  See  the  discussion  of  this  subject  by  the  author  in  his  article 
on  Maritime  Liens,  26  Cyc.  757,  note  62. 

isBrodie  v.  Howard.  17  C.  P».  (84  E.  C.  L.)  109;  FRAZER  v. 
CUTHBERTSON,  6  Q.  B.  I>.  03. 

19  Coyne  v.  Caples  (I).  C.)  8  Fed.  638;  Tunno  v.  Betsina,  Fed. 
Cas.  No.  14,236;   Scull  v.  Raymond  (D.  C.)  18  Fed.  547;   post,  p.  516. 


§  158)        RELATION   OF   VESSEL  OWNERS   INTER   SESB  339 

In  such  case  a  minority  owner  who  is  protected  by  such 
a  bond,  and  who  has  refused  to  join  in  the  voyage,  cannot 
claim  a  share  in  its  profits,  as  he  has  had  none  of  the  risk.20 

In  cases  of  disagreement  the  majority  owner  has  the  right 
to  the  use  of  the  vessel,  subject  to  the  right  of  the  minority 
to  require  bond  ;  but,  if  the  majority  will  not  use  the  vessel 
at  all,  then  the  minority  can  use  her  on  giving  a  similar 
bond  to  the  majority.  The  reason  of  this  is  the  principle 
of  public  policy  that  vessels  should  be  used,  and,  while  the 
majority  in  case  of  difference  as  to  the  precise  voyage  or 
the  precise  method  of  use  can  control,  they  cannot  control 
it  so  far  as  to  require  the  vessel  to  be  laid  up.21 

Although  admiralty  does  not  have  jurisdiction  to  decree 
a  sale  of  a  vessel  for  purpose  of  partition  where  the  inter- 
ests in  the  vessel  are  unequal — for  in  that  case  the  majority 
can  rule — yet,  if  the  interests  are  equal,  and  the  equal  in- 
terests disagree  as  to  the  method  of  employment  of  the 
vessel,  then  in  that  case  neither  can  compel  the  other  to  give 
way,  and  admiralty  has  jurisdiction  to  decree  a  sale  of  the 
vessel.22 

In  England  there  was  no  jurisdiction  in  admiralty  to  sell 
for  partition  until  the  Act  of  24  Vict.  c.  10.  The  eighth  sec- 
tion of  that  act  gives  such  jurisdiction,  whether  as  between 
equal  or  unequal  interests,  and  also  of  all  matters  of  ac- 
count between  part  owners.23 


-o  Marengo,  1  Low.  52,  Fed.  Cas.  No.  9.065;  Head  v.  Anioskeag 
Mfg.  Co.,  113  U.  S.  9,  5  Sup.  Ct.  447,  28  L.  Ed.  889. 

siTuuno  v.  Befsina,  Fed.  Cas.  No.  14,236;  Orleans,  11  Pet.  175. 
f>  L.  Ed.  677 ;  Gould  v.  Stanton,  16  Conn.  12 ;  Southworth  v.  Smith, 
27  Conn.  355,  71  Am.  Dee.  72 ;    England,  12  P.  D.  32. 

22  Ocean  Belle,  6  Ben.  253,  Fed.  Cas.  No.  10,402;  Tunno  v.  Betsina. 
Fed.  Cas.  No.  14,236 ;  Coyne  v.  Caples  (D.  C.)  S  Fed.  63S ;  Head  v. 
Amoskcag  Mfg.  Co.,  113  U.  S.  9,  23,  5  Sup.  Ct.  447,  2S  L.  Ed.  8S9. 
In  such  case  the  court  may  take  necessary  incidental  accounts. 
Emma  B.  (D.  C.)  140  Fed.  771. 

23  Apollo,  1  Hagg.  Ad.  306.  Smith's  Admiralty  Law  &  Practice 
(Ed.  1S92)  46  et  seq. 


340  VESSEL  OWNERSHIP  (Ch.  15 

On  the  principle  that  the  majority  rules,  a  majority  may 
remove  the  master  of  the  vessel  at  any  time,  even  without 
cause,  and  though  he  is  part  owner;  but,  if  they  remove 
him  prior  to  the  time  for  which  they  had  agreed  to  keep 
him,  or  in  any  way  break  their  contract  with  him,  they  are 
liable  to  an  action  for  damages.  Their  power  of  removal, 
however,  is  clear,  except  when  there  is  a  written  agreement 
to  the  contrary.  On  this  subject  section  4250  of  the  Re- 
vised Statutes  says : 

"Any  person  or  body  corporate  having  more  than  one- 
half  ownership  of  any  vessel  shall  have  the  same  power  to 
remove  a  master,  who  is  also  part  owner  of  such  vessel,  as 
such  majority  owners  have  to  remove  a  master  not  an  own- 
er. This  section  shall  not  apply  where  there  is  a  valid  writ- 
ten agreement  subsisting,  by  virtue  of  which  such  master 
would  be  entitled  to  possession,  nor  in  any  case  where  a 
master  has  possession  as  part  owner,  obtained  before  the 
ninth  day  of  April,  eighteen  hundred  and  seventy-two."  2i 

In  disputes  with  vessel  owners  admiralty  takes  cogni- 
zance only  of  legal  titles,  not  of  equitable.25 

The  admiralty  procedure  to  obtain  possession  of  a  ship 
is  a  petitory  or  possessory  libel.26 

24  Lizzie  Merry,  10  Ben.  140,  Fed.  Cas.  No.  S.423 ;  Montgomery  v. 
Wharton,  Fed.  Cas.  No.  9,737;  Same  v.  Henry,  1  Dall.  49,  1  L.  Ed. 
32,  1  Am.  Dec.  223;  Eliza  B.  Emory  (C.  C.)  4  Fed.  342;  Lombard  S. 
S.  Co.  v.  Anderson,  134  Fed.  568,  67  C.  C.  A.  432.  Section  4250  of 
the  Revised  Statutes  is  contained  in  U.  S.  Comp.  St.  §  7995. 

2  5  Eclipse,  135  U.  S.  599,  10  Sup.  Ct.  873,  34  L.  Ed.  269;  Robert  R. 
Kirkland  (D.  C.)  92  Fed.  407;  United  Transportation  &  Lighterage 
('o.  v.  New  York  &  Baltimore  Transp.  Line  (D.  C.)  185  Fed.  386,  107 
C.  C.  A.  442. 

20  Nellie  T.,  235  Fed.  117,  148  C.  C.  A.  611. 


§  159)       RELATION  OF  VESSEL  OWNERS  TO  THIRD  PARTIES      341 

RELATION  OF  VESSEL  OWNERS  AS  RESPECTS 
THIRD  PARTIES 

159.  Vessel  owners  are  liable  in  solido  for  the  debts  or  torts 
of  the  vessel  incurred  in  the  natural  course  of  busi- 
ness by  parties  holding  the  relation  of  agent  to 
such  vessel  owners. 

This  is  a  long-settled  principle  of  English  and  Ameri- 
can law.27 

The  parties  who  are  usually  the  agents  of  the  vessel  are 
the  master  and  the  managing  owner.  These  are  frequently 
combined  in  the  same  person,  and  their  powers  are  sub- 
stantially the  same.  They  may  bind  the  owners  for  debts 
in  the  usual  and  natural  employment  of  the  vessel. 

A  clear  statement  of  the  powers  of  the  ship's  managing 
owner  (which  is  practically  another  term  for  the  ship's  hus- 
band) is  set  out  in  volume  1,  §  428,  of  Bell's  Commentaries, 
which  enumerates  them  as  follows,  and  also  the  limitation 
!>n  his  powers : 

(1)  To  see  to  the  proper  outfit  of  the  vessel,  in  the  re- 
pairs adequate  to  the  voyage,  and  in  the  tackle  and  furni- 
ture necessary  for  a  seaworthy  ship.  (2)  To  have  a  proper 
master,  mate,  and  crew  for  the  ship,  so  that  in  this  respect 
it  shall  be  seaworthy.  (3)  To  see  to  the  due  furnishing  of 
provisions  and  stores,  according  to  the  necessities  of  the 
voyage.  (4)  To  see  to  the  regularity  of  all  the  clearance? 
from  the  custom  house,  and  the  regularity  of  the  registry. 
(5)  To  settle  the  contracts,  and  provide  for  the  payment  of 
the  furnishings  which  are  requisite  in  the  performance  of 
those  duties.  (6)  To  enter  into  proper  charter  parties,  or 
engage  the  vessel  for  general  freight,  under  the  usual  con- 

§  159.  27  Thompson  v.  Finden,  4  Car.  &  P.  15S,  19  E.  C.  L-.  320: 
Nestor,  1  Sumn.  73,  Fed.  Cas.  No.  10,126 ;  Gallatin  v.  Pilot,  2  Wall. 
Jr.  592,  Fed.  Cas.  No.  5,199. 


;?42  VESSEL   OWNERSHIP  ( Ch.  15 

ditions;  and  to  settle  for  freight  and  adjust  average  with 
the  merchant.  (7)  To  preserve  the  proper  certificates,  sur- 
veys, and  documents,  in  case  of  future  disputes  with  insur- 
ers or  freighters,  and  to  keep  regular  books  of  the  ship." 

In  a  well-considered  American  case  his  powers  are  enu- 
merated as  follows : 

"To  provide  for  the  complete  seaworthiness  of  the  ship ; 
to  see  that  she  has  on  board  all  necessary  and  proper  pa- 
pers;  to  make  contracts  for  freight;  to  collect  the  freight 
and  enter  into  proper  charter  parties ;  to  direct  the  repairs, 
appoint  the  officers  and  mariners ;  to  see  that  the  vessel  is 
furnished  with  provisions  and  stores;  and  generally  to 
conduct  all  the  affairs  and  arrangements  for  the  due  em- 
ployment of  the  ship  in  commerce  and  navigation."  28 

Mr.  Bell  in  treating  of  the  limitations  of  the  powers  of  a 
ship's  husband,  says : 

"(1)  That,  without  special  powers,  he  cannot  borrow 
money  generally  for  the  use  of  the  ship,  though  he  may 
settle  the  accounts  of  the  creditors  for  furnishings,  or  grant 
bills  for  them,  which  will  form  debts  against  the  concern, 
whether  he  has  funds  in  his  hands  or  not,  with  which  he 
might  have  paid  them.  (2)  That,  although  he  may,  in  the 
general  case,  levy  the  freight,  which  is,  by  the  bill  of  lading, 
payable  on  the  delivery  of  the  goods,  it  would  seem  that  he 
will  not  have  power  to  take  bills  for  the  freight,  and  give 
up  the  possession  and  lien  over  the  cargo,  unless  it  has  been 
so  settled  by  charter  party,  or  unless  he  has  special  author- 
ity to  give  such  indulgence.  (3)  That,  under  general  au- 
thority as  ship's  husband,  he  has  no  power  to  insure,  or  to 
bind  the  owners  for  premiums;  this  requiring  a  special  au- 
thority. (4)  That,  as  the  power  of  the  master  to  enter  into 
contracts  of  affreightment  is  superseded  in  the  port  of  the 

2  9  Chase  v.  McLean,  130  N.  Y.  529,  29  N.  E.  986.  As  to  his  powers 
as  agent,  see.  also,  Great  Lakes  Towing  Co.  v.  Mills  Transp.  Co., 
165  Fed.  11,  83  C.  C.  A.  GOT.  22  L.  R.  A.  (X.  S.)  709;  Benjamin  Noble, 
2  i  1  Fed.  95,  150  C.  C,  A.  523. 


§  159)       RELATION  OF  VESSEL  OWNERS  TO  THIRD  PARTIES      343 

owners,  so  is  it  by  the  presence  of  the  ship's  husband,  or  the 
knowledge  of  the  contracting  parties  that  a  ship's  husband 
has  been  appointed." 

Accordingly,  it  has  been  held  that  his  powers  do  not  ex- 
tend so  far  as  to  permit  him  to  bind  the  owners  for  the  car- 
go purchased  for  the  vessel,  that  not  being  considered  as  a 
necessity  in  the  course  of  business.29 

The  managing  owner  cannot  bind  the  others  in  the  home 
port  unless  express  authority  be  shown,  for  the  basis  of  his 
power  is  the  necessity  of  the  vessel,  and  in  the  home  port 
the  owners  can  easily  be  consulted.30 

Nor  can  he  bind  minority  owners  who  have  dissented 
from  the  use  of  the  vessel  for  that  particular  voyage,  for, 
as  they  cannot,  in  such  case,  share  in  the  profits,  it  would 
be  inequitable  to  expect  them  to  bear  the  costs.31 

The  supplies  for  which  part  owners  may  be  bound  by 
their  agents  are  simply  those  things  included  in  the  term 
"'necessaries."  In  another  connection  the  question  as  to 
what  constitutes  "necessaries"  which  a  captain  may  order 
for  his  vessel  has  been  discussed,  and  the  same  test  applies 
here.     Reference  is  made  to  that  discussion.32 

The  owners  are  liable  not  only  for  contract  debts,  but 
also  for  the  torts  of  the  master  in  the  line  of  his  duty,  not 
for  those  outside  the  line  of  his  duty.  For  instance,  in  The 
Waldo  3S  the  owners  were  held  liable  for  injury  to  goods 

2»01e  Oleson  (C.  C.)  20  Fed.  384. 

so  SPEDDEN  v.  KOENIG,  7S  Fed.  504,  24  C.  C.  A.  1S9;  Woodall  v. 
Dempsey  (D.  C.)  100  Fed.  653 ;  Besse  v.  Hecht  (D.  C.)  85  Fed.  677 ; 
Heirne  v.  Smith,  7  Ring.  700,  20  E.  C.  L.  300;  Briggs  &  Cobb  v. 
Barnett,  108  Va.  404,  61  S.  E.  797.  This  power  to  bind  the  owners 
personally  in  the  home  port  must  not  be  confused  with  his  power 
to  bind  the  ship  under  Act  June  23,  1910;    ante,  chapter  iv. 

si  FRAZER  v.  CUTHBERTSON,  6  Q.  B.  D.  93;  Vindobala,  13  P. 
D.  42;  Id.,  14  P.  D.  50;  Scull  v.  Raymond  (D.  C.)  IS  Fed.  547: 
Stedman  v.  Feidler,  20  N.  Y.  437. 

32  Ante,  p.  107. 

33  Waldo,  "2  Ware,   165,   Fed.   Cas.   No.   17,056.     Sec.  also,  Tavlor 


344  VESSEL   OWNERSHIP  ( Ch.  15 

on  a  vessel  while  in  transit,  but  not  for  damages  received  by 
their  sale  and  disposition  after  they  had  been  taken  from 
the  vessel;  the  master,  as  to  these  latter  transactions,  be- 
ing- considered  the  agent  of  the  shippers,  and  not  of  the 
vessel  owners. 

The  fact  that  a  person  appears  on  the  papers  of  the  ves- 
sel as  owner  does  not  make  him  liable.  As  seen  above,  he 
is  not  liable  if  he  has  expressly  dissented  from  the  voyage. 
In  addition,  if  the  bill  of  sale  or  title  which  he  holds  is  a 
mere  security,  as  a  mortgage  in  disguise,  and  he  has  not 
the  possession  of  the  vessel,  he  is  not  liable.  The  question 
reduces  itself  to  one  of  agency.  In  such  case,  as  he  has  not 
possession,  he  has  not  the  power  of  appointment  or  con- 
trol, and  the  parties  operating  the  vessel  are  not  his  agents. 
Even  if  the  vessel  is  run  on  shares  by  the  master,  that  does 
not  constitute  him  their  agent.34 

v.  Brigham,  3  Woods,  377,  Fed.  Cas.  No.  13,781;    ante,  p.  215. 

a*  Myers  v.  Willis,  17  C.  B.  (84  E.  C.  L.)  77;  Webb  v.  Peirce.  1 
Curt.  104,  Fed.  Cas.  No.  17,320;  Davidson  v.  Baldwin,  79  Fed.  95, 
24  C.  C.  A.  453 ;    Morgan  v.  Sbinn,  15  Wall.  105,  21  L.  Ed.  87. 


1G0)  RIGHTS   AND  LIABILITIES   OF   OWNERS  345 


CHAPTER  XVI 

OF    THE    RIGHTS    AND    LIABILITIES    OF    OWNERS    AS    AF- 
FECTED BY  THE  LIMITED  LIABILITY  ACT 

160.  History  of  Limitation  of  Liability  in  GeneraL 

101.  History  and  Policy  of  Federal  Legislation. 

162.  By  Whom  Limitation  of  Liability  may  be  Claimed. 

163.  Against  what  Liabilities  Limitation  may  be  Claimed. 

164.  Privity  or  Knowledge  of  Owner. 

165.  The  Voyage  as  the  Unit. 

166.  Extent  of  Liability  of  Part  Owners. 

167.  Measure  of  Liability — Time  of  Estimating  Values. 

168.  Prior  Liens. 

169.  Damages  Recovered  from  Other  VesseL 

170.  Freight 

171.  Salvage  and  Insurance. 

172.  Procedure — Time  for  Taking  Advantage  of  Statute. 

173.  Defense  to  Suit  against  Owner,  or  Independent  Proceeding. 

174.  Method  of  Distribution, 


HISTORY  OF  LIMITATION  OF  LIABILITY  IN 
GENERAL 

160.  The  limitation  of  owner's  liability  is  an  outgrowth  of 
the  modern  maritime  law  and  codes. 

Under  the  ancient  civil  law  the  owners  were  bound  in 
solido  for  the  liabilities  of  the  ship  arising  out  of  contract, 
and  in  proportion  to  their  respective  interests  for  liabilities 
arising  out  of  tort.  This,  however,  merely  settled  the  ques- 
tion of  proportion  as  between  the  owners,  but  not  the  ques- 
tion of  the  extent  of  their  liability.  There  seems  to  have 
been  no  limit  on  this  as  respects  the  value  of  the  vessel. 
But  the  importance  of  encouraging  maritime  adventures, 
especially  in  the  Middle  Ages,  when  that  was  almost  the 
only  method  of  communication  among  nations,  led  to  the 
gradual  adoption,  among  the  maritime  continental  codes,  of 


346  RIGHTS   AND  LIABILITIES   OF   OWNERS  (Ch.  16 

provisions  limiting  the  liability  of  the  owners  to  their  re- 
spective interests  in  the  ship.  The  greater  frequency  of 
maritime  disasters  in  those  days  of  frail  craft  emphasized 
the  need  of  such  a  provision.  Among  others,  we  find  these 
carried  into  the  famous  marine  Ordonnance  of  Louis  XIV, 
one  provision  of  which  is  that  the  owners  of  a  ship  shall  be 
answerable  for  the  deeds  of  the  master,  but  shall  be  dis- 
charged, abandoning  their  ship  and  freight.1 

In  the  last  century  this  policy  was  partially  adopted  in 
England,  though  their  act  of  limited  liability  was  then, 
and  still  is,  less  favorable  to  the  vessel  owner  than  most 
of  the  other  acts. 

The  history  of  the  development  of  this  principle  of  mod- 
ern maritime  law  is  summarized  by  Judge  Ware  in  the 
REBECCA,2  decided  long  before  there  was  any  federal 
statute  on  the  subject. 


HISTORY  AND   POLICY  OF  FEDERAL  LEGISLA- 
TION 

161.  The  federal  statutes  are  sections  4282-4289,  Rev.  St.,8 
Act  June  26,  1884,4  and  Act  June  19,  1885/'  They 
are  designed  to  encourage  shipping  by  extending 
all  possible  protection  to  vessel  owners. 

In  one  sense  the  Harter  Act  (U.  S.  Comp.  St.  §§  8029- 
8035)  is  an  act  limiting  the  liability  of  owners.  This,  how- 
ever, regulates  not  so  much  their  liability  in  amount  as  the 
question  whether  they  are  responsible  at  all  or  not.  But 
the  acts  immediately  in  view  in  the  principal  connection 
are  rather  those  limiting  the  amount  of  their  liability  where 

§  160.     »  30  Fed.  Cas.  p.  1,206. 

2 1  Ware  (188)  1ST,  Fed.  Cas.  No.  11,619. 

s  U.  S.  Comp.  St.  §§  S020-8027. 

4  23  Stat.  57  (V.  S.  Comp.  St.  §  8028)  ;    post,  p.  404. 

t>24  Stat.  SO  (U.  S.  <  Oinp.   St.  §  SOL'T);    post,  p.  407. 


§  161)        HISTORY  AND  POLICY  OF  FEDERAL  LEGISLATION         347 

some  liability  undoubtedly  exists,  and  not  the  acts  defining 
whether  or  not  they  are  liable  at  all. 

The  first  act  above  mentioned,  now  contained  in  sections 
4282-4289  of  the  Revised  Statutes,  was  passed  on  March  3, 
1851,  and  is  similar  to  the  British  statute,  although  in 
many  respects  the  act  itself  and  the  construction  placed  up- 
on it  by  the  courts  is  more  liberal  to  the  vessel  owner. 

The  statutes  regulating  the  relation  of  shippers  and  car- 
riers were  not  intended  to  repeal  these  statutes  pro  tanto, 
or  to  change  their  policy.6 

Policy  of  the  Act 

The  policy  of  these  acts  is  explained  by  Mr,  Justice  Brad- 
ley in  NORWICH  &  N.  Y.  TRANSP.  CO.  v.  WRIGHT,7 
a  leading  case  on  the  subject.    In  it  he  says: 

"The  great  object  of  the  law  was  to  encourage  shipbuild- 
ing, and  to  induce  capitalists  to  invest  money  in  this  branch 
of  industry.  Unless  they  can  be  induced  to  do  so,  the  ship- 
ping interests  of  the  country  must  flag  and  decline.  Those 
who  are  willing  to  manage  and  work  ships  are  generally 
unable  to  build  and  fit  them.  They  have  plenty  of  hardi- 
ness and  personal  daring  and  enterprise,  but  they  have  lit- 
tle capital.  On  the  other  hand,  those  who  have  capital,  and 
invest  it  in  ships,  incur  a  very  large  risk  in  exposing  their 
property  to  the  hazards  of  the  sea,  and  to  the  management 
of  seafaring  men,  without  making  them  liable  for  addi- 
tional losses  and  damage  to  an  indefinite  amount.  How 
many   enterprises  in   mining,  manufacturing,   and  internal 

s  So  held  as  to  the  section  of  the  Interstate  Commerce  Act  which 
defines  the  carriers,  whether  by  land  or  by  water,  which  are  subject 
to  its  provisions,  and  also  as  to  the  amendment  making  the  initial 
carrier  primarily  responsible.  24  Stat.  379  (U.  S.  Comp.  St.  §  8563). 
and  34  Stat.  595  (U.  S.  Comp.  St.  §  8604aa) ;  Hoffmans  (D.  C.)  171 
Fed.  455 ;  Burke  v.  Gulf,  C.  &  S.  F.  Ry.  Co.  (Mun.  Ct.  N.  Y.)  147  X. 
Y.  Supp.  794. 

7 13  Wall.  104,  20  L.  Ed.  585.  See,  also,  Doslions  v.  La  C^m- 
pagnie  Generate  Transatlantique,  210  U.  S.  95,  120,  28"  Sup.  Ct.  664, 
673,  52  Ll  Ed.  973. 


348  RIGHTS  AND  LIABILITIES   OF   OWNERS  (Ch.  16 

improvements  would  be  utterly  impracticable  if  capitalists 
were  not  encouraged  to  invest  in  them  through  corporate 
institutions  by  which  they  are  exempt  from  personal  lia- 
bility, or  from  liability  except  to  a  limited  extent?  The 
public  interests  require  the  investment  of  capital  in  ship- 
building quite  as  much  as  in  any  of  these  enterprises.  And, 
if  there  exist  good  reasons  for  exempting  innocent  ship- 
owners from  liability,  beyond  the  amount  of  their  interest, 
for  loss  or  damage  to  goods  carried  in  their  vessels,  pre- 
cisely the  same  reasons  exist  for  exempting  them  to  the 
same  extent  from  personal  liability  in  cases  of  collision. 
In  the  one  case  as  in  the  other,  their  property  is  in  the 
hands  of  agents  whom  they  are  obliged  to  employ." 

Liability  for  Fires — "Design  or  Neglect" 

The  first  section  of  this  act 8  does  (contrary  to  the  re- 
maining portion  of  it)  define  certain  circumstances  under 
which  the  question  of  the  responsibility  of  the  vessel  own- 
er is  involved,  rather  than  the  question  of  its  extent.  It 
provides,  in  substance,  that  there  shall  be  no  liability  at  all 
for  a  fire  unless  the  fire  is  caused  by  the  design  or  neglect 
of  the  owner.  This,  therefore,  furnishes  a  complete  de- 
fense to  any  liability,  and  not,  as  the  remainder  of  the  act, 
a  method  of  surrendering  an  interest  in  the  vessel  itself  as 
a  means  of  limiting  the  liability. 

The  meaning  of  these  words  "design  or  neglect"  came  up  in 
Walker  v.  Western  Transp.  Co.,9  and  the  construction  plac- 
ed upon  them  by  the  courts  is,  in  substance,  that  the  owners 
are  exempted,  though  there  might  be  some  design  or  neg- 
lect of  their  agents  or  employes,  provided  the  vessel  owner 
was  not  guilty  of  any  personal  design  or  neglect.  In  the 
opinion  of  the  court  Mr.  Justice  Miller  says: 

"It  is  quite  evident  that  the  statute  intended  to  modify 
the  shipowner's  common-law  liability,  for  everything  but 

s  Rev.  St.  §  4282  (U.  S.  Comp.  St.  §  S020). 

»3  Wall.  ir,0,  18  L.  Ed.  172.  See.  also,  Ingram  &  Royle,  Ltd.,  v. 
Servires  Maritimes,   [1913]  1  K.  B.  538. 


§  161)        HISTORY  AND  POLICY  OF  FEDERAL  LEGISLATION         349 

the  act  of  God  and  the  king's  enemies.  We  think  that  it 
goes  so  far  as  to  relieve  the  shipowner  from  liability  for 
loss  by  fire,  to  which  he  has  not  contributed  either  by  his 
own  design  or  neglect. 

"By  the  language  of  the  first  section  the  owners  are  re- 
leased from  liability  for  loss  by  fire  in  all  cases  not  coming 
within  the  exception  there  made.  The  exception  is  of  cases 
where  the  fire  can  be  charged  to  the  owner's  design  or  the 
owner's  neglect. 

"When  we  consider  that  the  object  of  the  act  is  to  limit 
the  liability  of  owners  of  vessels,  and  that  the  exception  is 
not  in  terms  of  negligence  generally,  but  only  of  negligence 
of  the  owners,  it  would  be  a  strong  construction  of  the  act, 
in  derogation  of  its  general  purpose,  to  hold  that  this  ex- 
ception extends  to  the  officers  and  crews  of  the  vessels  as 
representing  the  owners.  *  *  *  We  are,  therefore,  of 
opinion  that,  in  reference  to  fires  occurring  on  that  class  of 
vessels  to  which  the  statute  applies,  the  owner  is  not  liable 
for  the  misconduct  of  the  officers  and  mariners  of  the  ves- 
sel, in  which  he  does  not  participate  personally." 

The  later  case  of  the  Strathdon  10  involved  an  injury  to 
the  cargo  from  a  heated  flue  in  the  ship.  It  appeared  that 
the  ship  had  been  built  by  reputable  builders.  District 
Judge  Thomas,  in  delivering  the  opinion  of  the  court,  dis- 
cussed these  words  as  follows : 

"Hence  the  shipowners  are  not  liable  for  injury  to  the 
cargo  by  fire,  unless  the  cargo  owner  prove  by  a  prepon- 
derance of  evidence  that  the  fire  was  caused  by  the  design 
or  neglect  of  the  shipowners  touching  some  duty  that  was 
imposed  on  them  personally.  A  strained  meaning  should 
not  be  given  to  the  words  'design  or  neglect.'  The  word 
'design'  contemplates  a  causative  act  or  omission,  done  or 
suffered  willfully  or  knowingly  by  the  shipowner.     It  in- 

10  (D.  C.)  89  Fed.  374.  See,  also,  Diamond,  [1906]  p.  2S2  (an  over- 
heated stove). 


P.50  RIGHTS   AND  LIABILITIES   OF   OWNERS  (Ch.  16 

volves  an  intention  to  cause  the  fire,  or  to  suffer  it  to  be 
caused  by  another.  The  culpability  is  in  the  nature  of  a 
trespass.  It  is  not  understood  that  there  is  any  claim  that 
the  fire  in  question  was  caused  by  such  design  of  the  ship- 
owners. The  word  'neglect'  has  an  opposite  meaning. 
Negligence  involves  the  absence  of  willful  injury,  and  is  an 
unintended  breach  of  duty,  resulting  in  injury  to  the  prop- 
erty or  person  of  another.  Were  the  shipowners  guilty  of 
such  breach  of  duty?  The  duty  was  to  use  due  care  (and 
it  may  be  assumed  that  a  high  degree  of  care  would  be  re- 
quired) to  furnish  a  donkey  boiler,  if  one  were  furnished  at 
all,  so  related  to  the  other  parts  of  the  ship  that  the  cargo 
carried  in  the  ship  would  not  be  fired,  directly  or  indirectly, 
by  the  action  of  such  a  boiler,  at  least  when  properly  used. 
What  should  suitably  prudent  proposed  shipowners  do  to 
fulfill  this  duty?  If  they  were  not  competent  shipbuilders, 
they  should  engage  persons  of  proper  skill  and  carefulness, 
and  delegate  to  them  the  performance  of  the  duty.  If  the 
duty  could  not  be  delegated  so  as  to  exempt  them  from  lia- 
bility, yet  the  care  and  skill  of  the  builders  would  inure  to 
the  benefit  of  the  shipowners.  *  *  *  If,  now,  the  ship- 
owner has  employed  such  reputable  constructors,  and  if 
the  use  of  the  completed  ship  for  several  years  justify  the 
propriety  of  its  arrangement  and  precaution  against  fire, 
and  if  very  skilled  men  pronounce  that  the  work  accords 
with  the  existing  knowledge  of  their  profession,  and  if  no 
man  Be  forthcoming  to  declare  otherwise,  why  should  the 
shipowners  be  held  to  have  failed  in  skill  or  diligence? 
Their  care  and  skill  should  be  equal  to  the  prevailing  knowl- 
edge of  the  mechanism  which  they  undertake  to  construct 
and  use,  and  to  that  standard  they  have  attained.  If  there 
was  any  higher  skill  or  ability  existing  at  any  time  before 
the  fire,  evidence  of  it  should  have  been  given.  In  the  ab- 
sence of  such  evidence,  and  in  view  of  the  ample  proof  that 
what  was  known  on  the  subject  was  employed  in  the  con- 
struction of  the  donkey  boiler  and  flue,  the  shipowners  must 


§  161)       HISTORY  AND  POLICY  OF  FEDERAL  LEGISLATION         351 

be  considered  suitably  diligent.    It  results  that  they  are  not 
liable  for  the  injury  to  the  cargo  resulting  from  the  fire." 

Under  this  first  section  exempting  the  ship  from  entire 
liability,  it  has  been  held,  in  considering  the  peculiar  phrase- 
ology of  the  section  itself,  that  it  only  applied  to  fire  on  the 
ship,  or  to  fires  originating  off  the  ship,  and  then  commu- 
nicating to  the  ship,  and  damaging  goods  on  the  ship.  If 
the  injury  was  received  to  goods  on  the  wharf,  or  a  wharf- 
boat  alongside  of  the  ship,  there  would  not  be  any  exemp- 
tion from  liability  under  the  terms  of  this  first  section.11 

At  the  same  time,  an  injury  by  fire,  though  not  on  the 
ship,  can  be  set  up  in  partial  exemption  under  section  4283 ; 
as  injuries  by  fire  occurring  without  the  privity  or  knowl- 
edge of  owners  come  under  the  terms  of  that  section.12 

Hence,  as  to  injuries  by  fire,  the  question  of  exemption 
may  arise  in  two  ways :  First,  if  it  occurred  on  board  the 
ship  without  any  personal  design  or  neglect  of  the  ship- 
owner, complete  exemption  from  liability  can  be  pleaded ; 
second,  if  it  occurs  in  such  way  as  to  render  the  ship  or  the 
shipowner  liable,  the  owner  may  plead  partial  exemption 
by  surrendering  the  vessel  and  freight  under  the  terms  of 
section  4283. 
'Exemption  from  Contract  Liability  by  Act  June  26,  1884 

The  act  of  1851  remained  substantially  as  originally  draft- 
ed, with  the  exception  of  two  slight  amendments  (which  are 
embodied  in  the  text  in  the  last  edition  of  the  Revised  Stat- 
utes), until  1884. 

But  section  18  of  the  act  of  June  26,  1884,  greatly  extend- 
ed its  provisions.  This  section  was  not,  in  terms,  an  amend- 
ment of  the  act  of  1851.  This  first  act  had  only  applied  to 
cases  ex  delicto.  By  the  new  act  the  owners  were  allowed 
to   limit   their  liability  to   their  proportionate  interests  in 

ii  Egypt  (D.  C.)  25  Fed.  320;  City  of  Clarksville  (D.  C.)  04  Fed. 
201 :    Black  v.  Ashley,  SO  Mich.  90,  44  N.  W.  1120. 

12  PROVIDENCE  &  N.  Y.  S.  S.  CO.  v.  HILL  MFG.  CO.,  109  U.  S, 
578,  3  Sup.  Ct.  379.  017,  27  L.  Ed.  103S. 


352  RIGHTS   AND   LIABILITIES   OP   OWNERS  (Ch.  16 

the  vessel  against  obligations  incurred  by  a  master  or  part 
owner,  whether  on  contract  or  tort.  But  this  was  only  to 
debts  for  which  they  would  become  liable  on  account  of 
their  ownership  in  the  vessel,  and  did  not  apply  to  personal 
contracts  of  their  own.13 

The  difference  between  the  two  acts  is  explained  in  the 
Annie  Faxon,14  where  the  court  says : 

"We  fail  to  find  in  the  language  of  the  eighteenth  section 
of  the  act  of  June  26,  1884,  a  purpose  to  repeal  the  provi- 
sions of  any  pre-existing  statute.  While  its  terms  are 
vague,  it  would  appear  that  the  sole  object  of  the  act  was 
to  fix  the  liability  of  the  shipowners  among  themselves,  and 
extend  their  right  to  limit  their  liability  under  the  provi- 
sions of  section  4283  to  all  cases  of  debt  and  liability  under 
contract  obligations  made  on  account  of  the  ship,  with  the 
exception  of  wages  due  employes.  In  Chappell  v.  Brad- 
shaw  (C.  C.)  35  Fed.  923,  the  court  construed  it  thus: 
'There  are  no  words  in  it  which  signify  that  it  was  intended 
to  be  a  repealing  statute.  It  appears  to  be  another  section, 
intended  to  take  its  place  at  the  end  of  the  act  of  1851,  as 
that  act  is  given  in  the  Revised  Statutes.  It  is  another  sec- 
tion, extending  the  exemption  of  shipowners  to  all  or  any 
debts  or  liabilities  of  the  ship,  except  seamen's  wages  and 
liabilities  incurred  before  the  passage  of  the  act  of  1884. 
Where  a  subsequent  statute  can  be  so  construed  as  not  to 
bring  it  in  direct  conflict  with  an  antecedent  law,  it  will  not 
be  held  by  the  courts  to  repeal  the  former  statute.  Repeals 
by  implication  are  seldom  allowed,  and  to  do  so  in  this  in- 
stance would  be  to  do  violence  to  the  intention  of  Congress, 
which  appears  to  have  been  to  extend  the  act  of  1851  to 

is  Pendleton  v.  Benner  Line,  24G  U.  S.  353,  38  Sup.  Ct.  330,  02  L. 
Ed.  770:  Luekenbaoh  v.  W.  J.  McCahan  Sugar  Refining  Co.,  24S  U. 
S.  139,  39  Sup.  Ct.  53,  G3  L.  Ed.  170,  1  A.  L.  R.  1522 ;  Capitol  Transp. 
Co.  v.  Cambria  Steel  Co.,  249  TJ.  S.  334,  39  Sup.  Ct.  292,  63  L.  Ed. 
631. 

»  *  75  Fed.  312,  21  C.  C.  A.  366. 


§   161)        HISTORY  AND  POLICY  OF  FEDERAL  LEGISLATION        353 

exempt  shipowners  from  liabilities  not  embraced  in  this 
act.'  In  Gokey  v.  Fort  (D.  C.)  44  Fed.  364,  Brown,  J.,  said : 
'I  think  the  act  of  1884  is  doubtless  to  be  treated  as  in  pari 
materia  with  the  act  of  1851  (Rev.  St.  §§  4233-4285),  and 
designed  to  extend  the  act  of  1851  to  cases  of  the  master's 
acts  or  contracts,  and  thus  to  bring  our  law  into  harmony 
with  the  general  maritime  law  on  this  subject."1 

Amendment  of  June  19, 1886 — Constitutionality 

The  act  of  June  19,  1886,  was,  in  terms,  an  amendment  of 
the  act  of  1851.  The  original  act  had  debarred  from  its 
benefits  the  owners  of  any  canal  boat,  barge,  or  lighter,  or 
any  vessel  used  in  rivers  or  inland  navigation.  There  had 
been  some  discussion  as  to  the  meaning  of  "inland  naviga- 
tion" under  this  law,  and  it  had  been  held,  among  others, 
that  the  exception  did  not  apply  to  the  Great  Lakes.15 

The  question  of  the  constitutionality  of  these  acts  has 
been  considered  in  two  notable  cases.  In  Lord  v.  Goodall, 
N.  &  P.  S.  S.  Co.,16  the  constitutionality  of  the  act  was  up- 
held under  the  commerce  clause  of  the  Constitution;  that 
being  a  case  of  a  vessel  which  navigated  the  high  seas 
between  ports  of  the  same  state.  But  afterwards  the  ques- 
tion as  to  the  validity  of  the  law  in  relation  to  vessels  en- 
gaged solely  in  inland  navigation  came  before  the  court,  and 
the  constitutionality  of  the  law  was  sustained  under  the 
admiralty  clause  of  the  Constitution,  independent  of  the 
commerce  clause.  The  reasoning  of  the  court  is,  in  sub- 
stance, that  the  doctrine  of  limited  liability  is  an  established 
part  of  the  general  maritime  law,  and  that,  while  that  gen- 
eral law  has  no  place  in  our  jurisprudence  until  adopted,  the 
right  to  adopt  it  at  any  time  is  clearly  vested  in  Congress. 
This  question  has  been  discussed  fully  in  the  chapter  re- 

is  Craig  v.  Continental  Ins.  Co.,  141  U.  S.  63S,  12  Sup.  Ct.  97,  35  L. 
Ed.  886. 

ig4  Sawy.  292,  Fed.  Cas.  No.  8,506;  Id.,  102  U.  S.  541,  26  L.  Ed. 
224. 

Hughes.Adm.  (2d  Ed.)— 23 


354  RIGHTS   AND   LIABILITIES    OF    OWNERS  (Ch.  16 

lating  to  injuries  resulting  in  death,  to  which  reference  is 

made.17 


BY  WHOM  LIMITATION  OF  LIABILITY  MAY  BE 

CLAIMED 

162.  The  benefit  of  the  act  may  be  claimed  by  any  owner  or 
part  owner  who  had  no  privity  or  knowledge  of  the 
fault  which  gave  rise  to  the  liability. 

Where  a  vessel  is  owned  by  several  parties,  and  incurs  lia- 
bilities, though  those  liabilities  are  incurred  by  the  master 
or  managing  owner,  the  other  part  owners,  who  had  no  priv- 
ity or  knowledge  of  it,  can  claim  the  benefit  of  the  act,  and 
limit  their  responsibility  to  the  value  of  their  several  part 
interests.  This  applies  to  debts  and  liabilities  contracted 
in  the  usual  course  of  trade  of  a  vessel,  as  well  as  to  torts.18 

Its  benefits  may  be  claimed  by  the  underwriter  to  whom 
a  vessel  has  been  abandoned,  and  against  any  liability  in- 
curred while  the  vessel  is  in  charge  of  their  agent.19 

As  the  act  is  part  of  the  general  maritime  law,  it  may 
be  claimed  by  a  foreigner.20 

But  it  can  be  claimed  only  by  an  owner  or  charterer  op- 
erating the  ship.  One  who  hires  a  ship  under  a  contract 
which  leaves  her  operation  to  some  one  else  cannot  take 
advantage  of  the  statute.21' 

17  Ante,  p.  237;  In  re  Garnett,  141  U.  S.  1,  11  Sup.  Ct.  840,  35  L. 
Ed.  631. 

§  162.  is  In  re  Leonard  (D.  C.)  14  Fed.  53:  Warner  v.  Boyer  (D. 
C.)  74  Fed.  873;  S.  A.  McCaulley  (D.  C.)  09  Fed.  302:  Douse  v. 
Sargent  (D.  C.)  48  Fed.  695. 

19  Craig  v.  Continental  Ins.  Co.,  141  U.  S.  638,  12  Sup.  Ct.  97,  35 
L.  Ed.  886. 

20  SCOTLAND,  105  U.  S.  24.  26  L.  Ed.  1001;  Titanic  v.  Melloi  233 
D.  S.  718,  34  Sup.  Ct.  754,  58  L.  Ed.  1171. 

-i  Smith  v.  Booth  (D.  C.)  110  Fed.  6S0;  Id..  122  Fed.  626,  58  C.  C. 
A.  479:    In  re  Reichert  Towing  Line,  251  Fed.  214,  103  C.  C.  A.  370. 


§  163)       AGAINST    WHAT    LIMITATION   MAT   BE   CLAIMED  355 

AGAINST  WHAT  LIABILITIES  LIMITATION  MAY 
BE  CLAIMED 

163.  Under  the  original  act,  the  only  liabilities  against 
which  exemption  could  be  pleaded  were  those  over 
which  an  admiralty  court  would  have  jurisdiction, 
whether  in  point  of  fact  they  were  being  asserted 
in  an  admiralty  court  or  in  a  common-law  court 
having  concurrent  jurisdiction. 
But  under  the  amendment  of  June  26,  1884,  the  defense 
was  authorized  against  nonmaritime  causes  of  ac- 
tion also. 

The  leading  decision  laying  this  down  as  the  test  under 
the  original  act  is  EX  PARTE  PHENIX  INS.  CO.22  In 
that  case  a  fire  had  communicated  from  the  vessel  to  the 
shore,  and  had  done  damage  on  the  shore.  It  was.  con- 
tended that  the  vessel  owner  could  limit  his  liability  against 
such  a  cause  of  action  as  this,  and  that  it  came  within  the 
language  of  the  statute.  The  court,  however,  held  that,  as 
a  cause  of  action  originating  on  water,  but  consummate  on 
land,  could  not  be  asserted  in  an  admiralty  court,  the  own- 
er could  not  claim  the  benefit  of  the  act,  it  being  a  part  of 
the  general  maritime  law,  and  resting  mainly  on  that  law 
for  its  validity.23 

As  examples  of  such  causes  of  action,  the  defense  has  been 
sustained  against  fires  on  vessels,24  and  it  may  be  pleaded 
not  only  against  loss  or  damage  to  property,  but  also 
against  personal  injuries,  including  those  resulting  in  death  ; 
and  not  only  against  those  injured  on  the  vessel  itself  which 
is  setting  up  the  exemption,  but  those  also  injured  upon 

§  163.     22  H8  U.  S.  610,  7  Sup.  Ct.  25,  30  L.  Ed.  274. 

23  See,  also,  Goodrich  Trausp.  Co.  v.  Gagnon  (C.  C.)  36  Fed.  123. 

2*  Ante,  p.  348. 


356  RIGHTS   AND  LIABILITIES   OF  OWNERS  (Ch.  16 

another  vessel  by  the  negligence  of  the  vessel  asserting 
the  exemption.25 

This  includes  injuries  due  to  collision.26 

Though  the  test  of  maritime  jurisdiction  was  applied  as 
to  cases  under  the  original  act,  the  Supreme  Court  has  held 
that  the  intent  of  the  amendment  of  June  26,  1884,  was  to 
extend  the  exemption  to  nonmaritime  causes  of  action  as 
well,  whether  in  contract  or  tort,  in  pursuance  of  the  pol- 
icy of  encouraging  American  shipping.27 

In  this  respect  the  policy  of  the  act  differs  from  that  of 
the  Harter  Act.  It  has  been  seen  28  that  the  Harter  Act  is 
held  to  regulate  only  the  relations  between  a  shipper  and 
his  own  ship,  and  not  to  affect  any  rights  of  action  which 
parties  on  another  ship  injured  by  the  offending  ship  may 
have. 

On  the  other  hand,  this  act  enables  the  owner  to  defend 
himself  not  only  against  his  own  shippers  or  passengers, 
but  against  those  on  the  other  vessel  as  well.  The  reason 
for  the  difference  of  policy  is  that  the  Harter  Act  works  an 
entire  exemption  from  all  liability,  whereas  this  act  permits 
the  injured  party  to  subject  the  owner's  interest  in  the  ves- 
sel, and  merely  protects  the  owner  from  additional  liability 
beyond  the  value  of  his  vessel. 

The  act  may  be  invoked  even  against  unseaworthiness 
caused  by  negligent  loading,  which  is  another  striking  dif- 
ference between  it  and  the  Harter  Act.29 

ze  BUTLER  v.  BOSTON  &  S.  STEAMSHIP  CO.,  130  U.  S.  527,  9 
Sup.  Ct.  612,  32  L.  Ed.  1017 ;  Albert  Dumois,  177  U.  S.  240,  20  Sup. 
Ct.  595,  44  L.  Ed.  751;  City  of  Columbus  (D.  C.)  22  Fed.  460;  Am- 
sterdam (D.  C.)  23  Fed.  112;  Glaholm  v.  Barker,  L  E.  2  Eq.  598; 
Id.,  1  Ch.  App.  223. 

2  6  NORWICH  &  N.  Y.  TRANSP.  CO.  v.  WRIGHT,  13  Wall.  104, 
20  L.  Ed.  585 ;  Great  Western,  US  U.  S.  520,  6  Sup.  Ct.  1172,  30  L. 
Ed.  156. 

a?  Richardson  v.  Harmon,  222  U.  S.  96,  32  Sup.  Ct.  27,  56  L.  Ed. 
110;    Rochester  (D.  C.)  230  Fed.  519. 

2  8  Ante,  p.  183. 

29  COLIMA  (D.  C.)  S2  Fed.  665. 


§  164)  PRIVITY  OR   KNOWLEDGE   OF   OWNER  357 

It  may  be  pleaded  against  any  wrongful  acts  of  the  mas- 
ter;   for  example,  his  wrongful  sale  of  the  cargo.30 


PRIVITY  OR  KNOWLEDGE  OF  OWNER 

164.  In  order  for  the  owners  to  exonerate  themselves,  the 
negligent  act  must  have  been  without  their  privity 
or  knowledge.  This  means  the  personal  privity  or 
knowledge  of  the  owners,  and  not  the  mere  privity 
or  knowledge  of  their  agents;  except  that  in  the 
case  of  a  corporation  the  privity  or  knowledge  of 
the  president  or  other  high  official  above  the  grade 
of  an  employe  is  the  privity  or  knowledge  of  the 
corporation,  and  would  defeat  the  right  of  the  cor- 
poration to  the  exemption. 

The  question  what  constitutes  privity  or  knowledge  has 
been  the  subject  of  much  discussion.  It  is  clear,  at  the 
outset,  that  actual  knowledge  of  the  owners  would  pre- 
vent them  from  claiming  the  exemption.31 

Nor  can  it  be  claimed  against  liabilities  which  the  own- 
ers have  personally  contracted;  for  instance,  supplies  or- 
dered by  them  personally.32 

It  can  be  claimed  only  against  those  liabilities  incurred 
as  owner,  not  against  contracts  outside  of  the  regular  func- 
tions of  the  vessel  owner.  For  instance,  it  has  been  held 
that  it  could  not  be  set  up  against  a  vessel  owner's  contract 
to  insure  the  goods  shipped.33 

It  may  be  set  up  even  against  defects  which  would  be  held 
to  constitute  unseaworthiness  if  those  defects  were  not  dis- 
coverable by  the  ordinary  examination  of  an  unskilled  per- 

30  Giles  Loring  (D.  C.)  48  Fed.  463. 
§  164.     si  in  re  Meyer  (D.  C.)  74  Fed.  881. 

32  Amos  D.  Carver  (D.  C.)  35  Fed.  665;    McPhail  v.  Williams  (D. 
C.)  41  Fed.  61 ;    Gofcey  v.  Fort  (D.  C.)  44  Fed.  364. 
ssLaverty  v.  Clausen  (D.  C.)  40  Fed.  542. 


358  RIGHTS    AND   LIABILITIES    OF   OWNERS  (Ch.  16 

son.  In  Quinlan  v.  Pew  34  the  owners  had  chartered  the 
vessel  out  to  the  master.  There  was  a  defect  in  the  rig-gfins: 
at  the  time  of  the  commencement  of  the  voyage  which  the 
owners  did  not  know,  and  which  the  master  did  know  be- 
fore she  sailed.  The  owners  had  employed  him  to  put  the 
vessel  in  order,  and  he  did  not  report  this  defect  to  them. 
In  consequence  of  the  defect,  one  of  the  crew  was  injured, 
and  the  owners  attempted  to  limit  their  liability  by  appeal- 
ing to  this  statute.  This  was  contested  on  the  ground  that 
they  ought  to  have  known  of  this  defect;  that  it  was  such 
a  defect  as  affected  the  seaworthiness  of  the  vessel,  and 
that,  therefore,  they  should  be  denied  the  exemption.  The 
court,  however,  held  that  the  knowledge  of  the  agent  em- 
ployed by  them  to  make  these  repairs,  and  their  joint  obliga- 
tion to  render  the  vessel  seaworthy,  did  not  make  them 
privy  to  this  defect,  and  therefore  that  they  were  entitled  to 
limit  their  liability. 

In  the  Warkworth,35  which  arose  under  the  English  stat- 
ute, a  collision  was  caused  by  a  defect  in  the  steering  gear 
of  the  vessel.  The  owners  had  employed  a  man  on  shore  to 
inspect  the  vessel ;  and,  if  he  had  done  his  duty,  the  de- 
fect could  have  been  discovered.  It  was  held  that  this  fact 
did  not  prevent  the  owners  from  limiting  their  liability. 

In  Lord  v.  Goodall,  N.  &  P.  S.  S.  Co.,36  Circuit  Judge 
Sawyer  thus  discusses  the  meaning  of  the  words  "privity 
or  knowledge" : 

"As  used  in  the  statute,  the  meaning  of  the  words  'privity 
or  knowledge'  evidently  is  a  personal  participation  of  the 
owner  in  some  fault  or  act  of  negligence  causing  or  contrib- 
uting to  the  loss,  or  some  personal  knowledge  or  means  of 

3*  56  Fed.  Ill,  5  C.  C.  A.  438. 

35  9  p.  D.  20:    Id..  9  P.  D.  145. 

3  6  4  Sawy.  292,  Fed.  Cas.  No.  8,506.  This  case  was  takon  to  the 
Supreme  Court,  and  was  affirmed  on  the  question  of  the  constitu- 
aonality  of  the  statute.  See  102  U.  S.  541,  2<;  L.  Ed.  224.  The 
merits  do  not  sooin  to  have  come  before  the  Supreme  Court. 


§  1G4)  PRIVITY   OR    KNOWLEDGE    OP   OWNER  359 

knowledge,  of  which  he  is  bound  to  avail  himself,  of  a  con- 
templated loss,  or  of  a  condition  of  things  likely  to  produce 
or  contribute  to  the  loss,  without  adopting  appropriate 
means  to  prevent  it.  There  must  be  some  personal  con- 
currence, or  some  fault  or  negligence  on  the  part  of  the 
owner  himself,  or  in  which  he  personally  participates,  to 
constitute  such  privity,  within  the  meaning  of  the  act,  as 
will  exclude  him  from  the  benefit  of  its  provisions.  Hill 
Mfg.  Co.  v.  Providence  &  New  York  S.  S.  Co.,  113  Mass. 
499,  18  Am.  Rep.  527.  It  is  the  duty  of  the  owner,  how- 
ever, to  provide  the  vessel  with  a  competent  master  and  a 
competent  crew,  and  to  see  that  the  ship,  when  she  sails,  is 
in  all  respects  seaworthy.  He  is  bound  to  exercise  the  ut- 
most care  in  these  particulars — such  care  as  the  most  pru- 
dent and  careful  men  exercise  in  their  own  matters  un- 
der similar  circumstances;  and  if,  by  reason  of  any  fault 
or  neglect  in  these  particulars,  a  loss  occurs,  it  is  with  his 
privity,  within  the  meaning  of  the  act.  *  *  *  So,  also, 
if  the  owner  has  exercised  all  proper  care  in  making  his 
ship  seaworthy,  and  yet  some  secret  defect  exists,  which 
could  not  be  discovered  by  the  exercise  of  such  due  care, 
and  the  loss  occurs  in  consequence  thereof,  without  any 
further  knowledge  or  participation  on  his  part,  he  is  in 
like  manner  exonerated,  for  it  cannot  be  with  his  'privity 
or  knowledge,'  within  the  meaning  of  the  act,  or  in  any 
just  sense ;  and  the  provision  is  that  'the  liability  of  the 
owner  *  *  *  for  any  act,  matter  or  thing,  loss,  etc., 
*  *  *  occasioned  without  the  privity  or  knowledge  of 
such  owner  or  owners,  shall  in  no  case  exceed  the  amount 
or  value  of  the  interest  of  such  owner  in  such  vessel  and 
her  freight  then  pending.'  This  language  is  broad,  and 
takes  away  the  quality  of  warranty  implied  by  the  common 
law  against  all  losses  except  by  the  act  of  God  and  the  pub- 
lic, enemy.  When  the  owner  is  a  corporation,  the  privity 
or  knowledge  of  the  managing  officers  of  the  corporation 


360  RIGHTS   AND  LIABILITIES   OP   OWNERS  (Ch.  16 

must  be  regarded  as  the  privity  and  knowledge  of  the  cor- 
poration itself." 

But  if  the  warranty  of  seaworthiness  springs  from  an 
express  contract  made  by  the  owner  personally,  and  not  as 
a  mere  implication,  the  owner  cannot  defend  on  the  want  of 
privity  or  knowledge,  for  he  must  know  what  contract  he 
made  personally.37 

The  question  of  the  privity  or  knowledge  of  a  corpora- 
tion has  been  the  subject  of  many  interesting  decisions. 
The  result  of  these  decisions  is  in  substance  that  knowledge 
of  some  defect  (even  amounting  to  unseaworthiness)  by 
some  agent  or  employe  is  not  the  knowledge  of  the  corpo- 
ration, so  as  to  defeat  its  right  to  the  exemption ;  but  the 
knowledge  of  the  president  or  other  high  official  of  the  cor- 
poration would  be. 

In  the  COLIMA,88  the  vessel  was  rendered  unseaworthy 
by  the  method  in  which  her  master  and  crew  loaded  her, 
and  it  was  contended  that  this  defeated  the  corporation  own- 
er's right  to  the  exemption.  District  Judge  Brown,  how- 
ever, held  that  it  did  not.     In  his  opinion  he  says: 

"I  think  the  petitioner,  upon  surrender  of  the  freight 
($23,846.58),  is  entitled  to  the  exemption  provided  by  sec- 
tion 4283  of  the  Revised  Statutes,  as  not  being  privy  to  the 
defects  in  loading,  or  in  the  management  of  the  ship  at  sea, 
nor  having  knowledge  of  them.  Privity  and  knowledge  are 
chargeable  upon  a  corporation  when  brought  home  to  its 
principal  officers,  or  to  the  superintendent,  who  is  its  rep- 
resentative ;  and,  if  such  privity  or  knowledge  were  here 
brought  home  to  Mr.  Schwerin,  the  petitioner's  superin- 
tendent, they  would  be  chargeable  upon  the  corporation. 
But  the  privity  or  knowledge  referred  to  in  the  statute  is 
not  that  which  arises  out  of  the  mere  relation  of  principal 

3  7  Pendleton  v.  Benner  Line,  246  U.  S.  353,  38  Sup.  Ct.  330,  62  L. 
Ed.  770. 

38  (D.  C.)  82  Fed.  665.  See,  also,  Erie  Lighter  108  (D.  C.)  250 
Fed.    400,    404(5). 


§  1G4)  PRIVITY  OR   KNOWLEDGE   OF   OWNER  361 

and  agent  by  legal  construction.  If  it  were,  the  statute 
would  have  nothing  to  operate  upon,  since  the  owner  does 
not  become  liable  at  all  except  for  the  acts  of  himself  or 
his  agent.  The  object  of  this  statute,  however,  was  to 
abridge  the  liability  of  shipowners  arising  out  of  a  merely 
constructive  privity  with  their  agent's  acts,  by  introduc- 
ing the  rule  of  limited  liability  prevailing  in  the  general 
maritime  law,  upon  the  terms  prescribed  in  the  statute,  so 
far  at  least  as  respects  damages  for  torts ;  while  the  act 
of  1884  extends  this  limitation  to  contracts  also,  except  as 
to  seamen's  wages.  *  *  *  The  knowledge  or  privity 
that  excludes  the  operation  of  the  statute  must,  therefore, 
be  in  a  measure  actual,  and  not  merely  constructive;  that 
is,  actual  through  the  owner's  knowledge,  or  authorization, 
or  immediate  control  of  the  wrongful  acts  or  conditions,  or 
through  §ome  kind  of  personal  participation  in  them.  If 
Mr.  Schwerin,  the  superintendent,  had  been  either  charged 
personally  with  the  duty  of  directing  or  managing  the  dis- 
tribution of  this  cargo  with  reference  to  the  stability  of  the 
ship,  or  had  assumed  that  function,  the  company  would  per- 
haps have  been  'privy'  to  any  defects  in  loading  arising  from 
the  negligence  of  workmen  under  his  immediate  direction 
and  control,  whether  he  had  actual  knowledge  of  their  de- 
linquencies or  not;  since  it  is  the  duty  of  the  person  in  im- 
mediate charge  and  actual  control  to  see  and  know  that 
proper  directions  are  carried  out.  However  that  may  be, 
Mr.  Schwerin  had  no  such  duty,  and  assumed  no  such 
function.  That  duty,  as  the  evidence  shows,  was  commit- 
ted to  a  competent  stevedore,  who  acted  under  the  imme- 
diate direction  of  the  master  and  first  mate,  or  in  conjunc- 
tion with  them.  The  master  and  mate  were  the  proper 
persons  to  determine  and  insure  the  necessary  trim  and  sta- 
bility of  the  ship,  and  are  supposed  to  be  specially  qualified 
to  do  so.  Lawrence  v.  Minturn,  17  How.  100,  111,  116,  15 
L,.  Ed.  58.  Whatever  mistakes  or  negligence  may  have 
occurred  in  that  work,  there  is  no  evidence  that  Mr.  Schwer- 


•^62  RIGHTS   AND   LIABILITIES    OF   OWNERS  (Ch.  16 

in  knew  of  them ;  nor  would  they  naturally  have  come  to 
his  knowledge ;  and  I  do  not  see  the  least  reason  to  doubt 
his  testimony  that  he  believed  that  the  ship  was  properly 
loaded,  and  perfectly  seaworthy.  The  deck  load  was  no  in- 
dication to  the  contrary,  because  deck  loads  were  custom- 
ary, and  safe  with  proper  loading  below." 

In  the  Annie  Faxon,39  an  injury  happened  from  an  ex- 
plosion of  the  boiler.  It  appeared  that  the  corporation  own- 
ing the  vessel  had  left  the  duty  of  inspecting  this  boiler  to 
a  competent  marine  engineer,  and  that  the  defect  which 
caused  the  injury  would  not  have  been  apparent  to  an  un- 
skilled person.  It  was  held  that  the  negligence  of  this  em- 
ploye to  inspect  the  boiler  properly  was  not  such  privity  or 
knowledge  of  the  corporation  as  defeated  its  right  to  the 
exemption.    In  the  opinion  Gilbert,  J.,  says : 

"We  are  unable  to  perceive  how  there  can  be  imputation 
of  privity  or  knowledge  to  a  corporation  of  defects  in  one 
of  its  vessel's  boilers,  unless  the  defects  were  apparent,  and 
of  such  a  character  as  to  be  detected  by  the  inspection  of  an 
unskilled  person.  The  record  fails  to  show  that  the  de- 
fects were  of  this  character.  The  testimony  fairly  sustains 
the  finding  of  the  court  that  the  defects  in  the  boiler  were 
not  patent,  and  that  they  could  have  been  discovered  only 
by  applying  the  proper  tests  after  the  repairs  of  June,  1893. 
The  test  was  not  applied,  and  in  that  omission  is  one  of  the 
elements  of  the  negligence  of  the  petitioners,  as  found  by 
the  court.  When  we  consider  the  purpose  of  the  law 
which  is  under  consideration,  and  the  construction  that  has 
been  given  to  it  by  the  courts,  it  is  obvious  that  the  man- 
agers of  a  corporation  whose  business  is  the  navigation  of 
vessels  are  not  required  to  have  the  skill  and  knowledge 
which  are  demanded  of  an  inspector  of  a  boiler.  It  is  suffi- 
cient if  the  corporation  employ,  in  good  faith,  a  competent 
person  to  make  such  inspection.     When  it  has  employed 

™  75  Fed.  312,  21  C.  C.  A.  366.  See,  also,  Plarry  Hudson  Smith, 
142  Fed.  721,  74  C.  C.  A.  56. 


§  164)  PRIVITY   OR    KNOWLEDGE    OF   OWNER  303 

such  a  person  in  good  faith,  and  has  delegated  to  him  that 
branch  of  its  duty,  its  liability  beyond  the  value  of  the 
vessel  and  freight  ceases,  so  far  as  concerns  injuries  from 
defects  of  which  it  has  no  knowledge,  and  which  are  not  ap- 
parent to  the  ordinary  observer,  but  which  require  for  their 
detection  the  skill  of  an  expert." 

It  was  held,  however,  in  this  same  case,  that  the  require- 
ment of  section  4493  of  the  Revised  Statutes  (U.  S.  Comp. 
St.  §  8269),  making  exceptions  in  favor  of  passengers  on 
vessels,  was  not  affected  by  the  limited  liability  act,  it  being 
an  entirely  different  statute,  which,  when  considered  in  pari 
materia  with  the  limited  liability  act,  might  be  considered 
an  exception  to  it. 

In  Craig  v.  Continental  Ins.  Co.,40  the  injury  arose  from 
the  negligence  of  an  employe  of  the  insurance  company  to 
which  the  vessel  had  been  abandoned.  The  employe  was 
attempting  to  bring  her  to  port  in  a  disabled  condition. 
The  court  held  that  his  negligence  was  not  the  privity  or 
knowledge  of  the  insurance  company,  which  owned  her  by 
virtue  of  the  abandonment,  and  that  they  could  claim  the 
limitation  of  liability. 

The  habitual  disregard  of  the  rule  against  immoderate 
speed  in  a  fog  by  the  navigators  of  a  ship  does  not  deprive 
the  owner  of  the  right  to  a  limitation  unless  knowledge  of 
such  practice  is  brought  home  to  him.41 

The  failure  of  the  captain  of  a  ship  to  follow  the  direc- 
tions of  his  Government  in  time  of  war  does  not  defeat  the 
owner's  right  to  a  limitation.42 

On  the  other  hand,  in  the  Republic,43  a  barge  belonging 
to  a  corporation  was  being  used  for  an  excursion,  and  while 

4u  141  U.  S.  63S,  12  Sup.  Ct.  97,  35  L,  Ed.  886. 

4i  Peslions  v.  La  Compagnie  Generate  Transatlantique.  210  U.  S. 
95,  28  Sup.  Ct.  664,  52  L.  Ed.  973 ;    Boston  Marine  Ins.  Co.  v.  Met- 
ropolitan Redwood  Lumber  Co.,  197  Fed.  703,  117  C.  C.  A.  97. 
.    42  Lusitania  (D.  C.)  251  Fed.  715. 

43  61  Fed.  109,  9  C.  C.  A.  386. 


364  RIGHTS   AND   LIABILITIES   OF    OWNERS  (Ch.  16 

in  such  use,  with  many  passengers  aboard,  was  injured  by 
a  thunderstorm  of  no  extraordinary  severity.  The  barge 
had  been  inspected  by  the  president  of  the  corporation,  and 
its  unsafe  condition  was  apparent.  The  court  held  that  his 
knowledge  was  the  knowledge  of  the  corporation,  and  that 
they  could  not  plead  the  statute  in  defense  under  such  cir- 
cumstances. 

A  superintendent  with  general  control  and  management 
of  a  company's  business  is  an  official  of  such  grade  that  his 
knowledge  is  the  knowledge  of  the  corporation.44 

THE  VOYAGE  AS  THE  UNIT 

165.  The  end  of  the  voyage  is  the  time  as  of  which  the  ex- 
emption can  be  claimed,  the  voyage  being  taken 
as  the  unit.  If  the  voyage  is  broken  up  by  a  dis- 
aster— as,  for  example,  when  the  vessel  is  totally 
lost — that  is  taken  as  the  time. 

It  can  readily  be  understood  that  the  act  does  not  intend 
to  permit  the  owners  an  exemption  for  an  indefinite  period 
prior  to  the  accident.  As  the  act  of  1884  extended  the  right 
of  exemption  to  debts  as  well  as  torts,  the  hardship  of  such 
a  construction  would  be  patent.  Hence  the  courts  have 
taken  the  voyage  as  the  unit,  and  permitted  the  owner  to 
protect  himself  simply  against  the  liabilities  of  the  voyage. 
This  may  be  difficult  to  apply  in  many  cases,  and,  in  fact, 
in  the  case  of  boats  which  make  very  short  voyages,  may 
greatly  curtail  the  benefit  of  the  act  to  the  owner ;  but  that 
is  settled  as  the  test. 

In  the  CITY  OF  NORWICH,45  this  was  laid  down  as 
the  rule  by  the  United  States  Supreme  Court.  There  the 
vessel  was  destroyed  by  an  accident. 

44  Erie  Lighter  108  (p.  C.)  250  Fed.  490;  Eastern  S.  S.  Corpora- 
tion v.  Great  Lakes  Dredge  &  Dock  Co.  (C.  C.  A.)  25G  Fed.  497. 

§  1G5.  4  5  us  U.  S.  468,  6  Sup.  Ct.  1150,  30  L.  Ed.  134.  See,  also, 
Americana  (D.  C.)  230  Fed.  853. 


§  167)  MEASURE   OF  LIABILITY  365 

In  the  Great  Western,48  the  vessel  had  one  accident,  and, 
proceeding  on  her  voyage,  had  a  second  accident,  entirely 
disconnected  with  the  first — the  result  of  the  second  acci- 
dent being  the  wreck  of  the  vessel.  The  court  held  that  the 
termination  of  the  voyage  was  the  second  accident,  and 
that  the  owners  could  limit  their  liability  for  everything  up 
to  that  point  on  that  voyage.47 

This  means  the  straight  voyage,  not  the  round  trip.48 

EXTENT  OF  LIABILITY  OF  PART  OWNERS 

166.  The  part  owners  are  liable  each  to  the  extent  of  their 

proportionate  interest  in  the  vessel,  except  that  a 
part  owner  personally  liable  cannot  claim  the  ex- 
emption at  all.49 

MEASURE  OF  LIABILITY— TIME  OF  ESTIMATING 

VALUES 

167.  The  value  of  the  vessel  and  pending  freight  is  taken 

just  after  the  accident,  or  end  of  the  voyage,  if  the 
voyage  is  not  broken  up  by  the  accident. 

This  is  laid  down  by  the  Supreme  Court  in  the  case  of 
the  SCOTLAND,50  and  marks  a  material  difference  be- 
tween the  American  and  English  act.  Our  act  fixes  the 
value  of  the  vessel  just  after  the  accident,  so  that,  if  she 
is  totally  lost,  the  liability  of  the  owner  is  practically  noth- 
ing.   The  English  act,  on  the  other  hand,  takes  a  tonnage 

4  6  us  TJ.  S.  520,  6  Sup.  Ct.  1172,  30  L.  Ed.  156. 

47  See,  also,  Gokey  v.  Fort  (D.  C.)  44  Fed.  364;  Geo.  L.  Garlick, 
107  Fed.  542,  46  C.  C.  A.  456. 

4  8  Deslions  v.  La  Compagnie  Gengrale  Transatlantique,  210  U.  S. 
95,  28  Sup.  Ct.  664,  52  L.  Ed.  973. 

§  166.  49  "Whitcomb  v.  Emerson  (D.  C.)  50  Fed.  128 ;  Giles  Loring 
(D.  C.)  48  Fed.  463. 

§  167.     bo  105  U.  S.  24,  26  L.  Ed.  1001. 


366  RIGHTS   AND   LIABILITIES   OF   OWNERS  (Ch.  16 

valuation  just  before  the  accident,  so  that,  in  case  of  total 
loss,  under  the  English  act  the  owner  must  make  up  to  the 
creditors  of  the  vessel  substantially  the  value  of  the  vessel 
uninjured. 

In  the  CITY  OF  NORWICH,51  it  is  settled  as  the  law  of 
this  country  that  the  value  is  taken  as  of  the  end  of  the 
voyage,  if  not  lost,  but  at  the  accident  if  the  vessel  is  totally 
lost,  and  the  voyage  thereby  broken  up.  Hence,  if  a  vessel 
is  partially  injured,  and  subsequently  raised  and  repaired, 
the  owners  can  have  the  cost  of  raising  and  repairing  taken 
into  consideration,  and  receive  credit  for  them  in  the  valua- 
tion of  the  vessel. 

The  voyage  itself  may  be  rather  an  indefinite  expression. 
For  instance,  it  has  been  held  in  the  case  of  a  vessel  used 
during  a  fishing  season  that  the  entire  fishing  season  ought 
to  be  treated  as  one  voyage,  and  that,  therefore,  the  owners 
must  account  for  the  entire  season's  earnings  in  order  to 
obtain  the  benefit  of  the  limitation.62 


SAME— PRIOR  LIENS 
168.  The  res  must  be  surrendered  clear  of  prior  liens. 

In  fixing  the  value,  the  owner  must  account  for  the  value 
of  the  res,  clear  of  all  liens  or  claims  prior  to  the  voyage. 

The  res,  in  the  sense  of  this  statute,  may  consist  of  more 
than  one  vessel.  In  the  Bordentown,53  several  tugs  belong- 
ing to  the  same  owner  were  towing  a  large  tow  of  many 
barges.  After  the  towage  commenced,  one  of  the  tugs 
was  detached,  but  the  two  remaining  tugs  were  guilty  of 
an  act  of  negligence,  causing  great  loss.     The  court  held 

•r-i  IIS  U.  S.  4GS,  6  Sup.  Ct.  1150,  30  L.  Ed.  134.  See,  also,  A.bbie 
C.  stubbs  (D.  C.)  28  Fob  719;  Mauch  Chunk  (D.  C.)  139  Fed.  717; 
1.1..  1.14  Fed.  182,  83  C.  C.  A.  L'7C». 

62  Whitcomb  v.  Emerson  (D.  C.)  50  Fed.  128. 

§  168.     53  (D.  C.)   H'  Fed.  682. 


§  168)  MEASURE   OF  LIABILITY  367 

that  the  owner,  in  order  to  claim  the  benefit  of  the  statute, 
must  surrender  the  two  tugs  that  participated  in  the  negli- 
gent act,  but  not  the  one  which  had  been  detached  before 
the  act  occurred. 

In  the  Columbia,54  a  barge  without  means  of  propulsion 
was  being  towed  by  a  tug,  and  a  large  quantity  of  freight 
was  on  the  barge.  When  exemption  was  claimed  against 
an  accident,  including  large  claims  of  personal  injury,  it 
was  held  that  the  owner  was  required  to  surrender  both 
the  tug  and  the  barge. 

The  rule  is  that  the  vessels  at  fault  must  be  surrendered, 
not  those  who  are  innocent  instruments.  For  instance,  in 
case  of  tug  and  tow,  the  question  whether  tug  or  tow  should 
be  surrendered  would  depend  on  the  question  which  was 
liable,  neither  being  responsible  for  the  acts  of  the  other.55 

As  stated  above,  the  owner  must  also  surrender  the  vessel 
clear  of  prior  liens.  If  this  were  not  so,  he  might,  by  mort- 
gaging the  vessel  to  her  value,  withdraw  all  funds  from  the 
creditors  of  the  boat.  Accordingly,  in  the  Leonard  Rich- 
ards,56 the  court  says: 

"The  first  question  suggested  by  counsel  for  the  owners 
of  the  tug  is  as  to  the  proper  construction  to  be  put  upon 
the  words  'value  of  the  interest  of  the  owner,'  as  used  in 
the  limited  liability  act.  The  section  of  the  act  in  point,  or 
so  much  of  it  as  is  necessary  to  quote,  is  as  follows :  'The 
liability  of  the  owner  of  any  vessel,  *  *  *  for  any  loss, 
damage,  or  injury  by  collision,  *  *  *  done,  occasioned, 
or  incurred,  without  the  privity  or  knowledge  of  such  own- 
er or  owners,  shall  in  no  case  exceed  the  amount  or  value  of 

6  4  73  Fed.  226.  19  C.  C.  A.  436. 

ss  Eugene  F.  Moran  v.  New  York  Cent.  &  H.  R.  R.  Co.,  212  U.  S. 
466,  29  Sup.  Ct.  339.  53  L.  Ed.  GOO:  Transfer  No.  21,  248  Fed.  459, 
160  C.  C.  A.  469;  Erie  Lighter  10S  (D.  C.)  250  Fed.  490;  O'Brien 
Bros.  (D.  C.)  252  Fed.  185. 

se  (D.  C.)  41  Fed.  81S.  See,  also,  Gokey  v.  Fort  (D.  C.)  44  Fed. 
364. 


368  RIGHTS   AND   LIABILITIES   OF   OWNERS  (Ch.  16 

the  interest  of  such  owner  in  such  vessel,  and  her  freight 
then  pending.'  Rev.  St.  U.  S.  §  4283.  It  appears  in  this 
case  that  supplies  to  a  large  amount  had  been  furnished  to 
this  tug,  which  were  at  the  time  of  the  collision  unpaid  for, 
and  which,  under  the  law,  were  liens  upon  the  vessel ;  and 
the  insistment  of  counsel  was  that  although  the  tug  had  an 
apparent  value  of  $8,000,  and  had  been  appraised  at  that 
sum,  yet  the  'interest  of  the  owner'  in  her  ought  not  to  be 
calculated  upon  that  basis,  but  that  from  the  appraised  val- 
ue of  the  vessel  should  be  deducted  the  full  amount  of  the 
debts  and  claims  owed  by  the  vessel,  and  the  balance  tak- 
en to  be  the  true  Value  of  the  interest'  of  the  owner.  In 
other  words,  that,  while  the  stipulation  filed,  and  upon 
which  the  tug  was  released  from  the  custody  of  the  officers 
and  returned  to  her  owner,  was  for  $8,000,  yet  when  the 
time  came  for  payment  of  the  sum  into  court  in  compliance 
with  its  condition,  to  be  distributed  among  libelants  and 
claimants  according  to  law,  there  should  be  first  deducted 
therefrom  a  sum  equal  to  the  full  amount  of  all  debts  due 
for  supplies,  repairs,  etc.,  for  which  liens  against  the  vessel 
could  be  enforced,  and  the  balance  only  brought  here  as  the 
true  value  of  the  owner's  interest,  to  be  distributed  pro  rata 
among  the  libelants.  Without  considering  whether  the 
owner  is  not,  by  his  own  act.  estopped  from  raising  this 
question  now,  after  entering  into  a  stipulation  to  pay  the 
full  amount  of  the  appraised  value  of  the  tug  if  she  be  found 
in  fault  to  the  other  libelants,  and  in  consideration  thereof 
receiving  security  from  the  law  from  all  further  or  greater 
liability,  I  am  clearly  of  opinion  that  the  real  value  of  the 
vessel  in  fault,  without  regard  to  liens  upon  her  at  the  ter- 
mination of  her  voyage,  upon  which  she  negligently  caused 
the  injury  complained  of,  measures  justly  and  equitably 
the  value  of  the  interest  of  the  owner  therein  as  contemplat- 
ed by  the  limited  liability  act." 


§  169)  MEASURE   OP  LIABILITY  369 

SAME— DAMAGES  RECOVERED  FROM  OTHER 
VESSEL 

169.  The  owner  must  also  surrender  damages  recovered 
from  another  vessel. 

If  the  owner  has  proceeded  against  another  vessel,  and 
recovered  damages  for  the  injury  to  his  vessel  in  the  acci- 
dent against  which  he  is  claiming  liability,  he  must  surren- 
der these  damages  also;  they  being  considered  the  repre- 
sentative of  his  vessel.  This  was  held  in  O'Brien  v.  Mill- 
er.57 In  delivering  the  opinion  of  the  court,  Mr.  Justice 
White  says: 

"The  clear  purpose  of  Congress  was  to  require  the  ship- 
owner, in  order  to  be  able  to  claim  the  benefit  of  the  lim- 
ited liability  act,  to  surrender  to  the  creditors  of  the  ship 
all  rights  of  action  which  were  directly  representative  of 
the  ship  and  freight.  Where  a  vessel  has  been  wrongfully 
taken  from  the  custody  of  her  owners,  or  destroyed  through 
the  fault  of  another,  there  exists  in  the  owner  a  right  to 
require  the  restoration  of  his  property,  either  in  specie  or 
by  a  money  payment,  as  compensation  for  a  failure  to  re- 
store the  property.  Manifestly,  if  the  option  was  afforded 
the  owner  of  the  ship  to  receive  back  his  property  or  its 
value,  he  could  not,  by  electing  to  take  its  value,  refuse  to 
surrender  the  amount  as  a  condition  to  obtaining  the  bene- 
fit of  the  act.  *  *  *  Indeed,  that  a  right  of  action  for  the 
value  of  the  owner's  interest  in  a  ship  and  freight  is  to  be 
considered  as  a  substitute  for  the  ship  itself,  was  decided  in 
this  court  in  the  case  of  Sheppard  v.  Taylor,  5  Pet.  675,  8 
L.  Ed.  269.  *  *  *  Mr.  Justice  Story,  delivering  the 
opinion  of  the  court,  said  (page  710,  5  Pet.,  and  page  282,  8 
L.  Ed.)  :    'If  the  ship  had  been  specifically  restored,  there  is 

§  109.     5  7  108  U.  S.  287,  18  Sup.  Ct.  140,  42  L.  Ed.  409.     See,  also, 
St.  Johns  (D.  C.)  101  Fed..  409. 
Hughes, Adm.  (2d  Ed.) — 24 


370  RIGHTS   AND   LIABILITIES    OF    OWNERS  (Ch.  16 

no  doubt  that  the  seamen  might  have  proceeded  against  it 
in  the  admiralty  in  a  suit  in  rem  for  the  whole  compensation 
due  to  them.  They  have,  by  the  maritime  law,  an  indisputa- 
ble lien  to  this  extent.  This  lien  is  so  sacred  and  indelible 
that  it  has  on  more  than  one  occasion  been  expressively 
said  that  it  adheres  to  the  last  plank  of  the  ship.  Relf  v. 
The  Maria,  1  Pet.  Adm.  186,  195,  note,  Fed.  Cas.  No.  11,692; 
The  Sydney  Cove,  2  Dod.  13 ;  The  Neptune,  1  Hagg.  Ad. 
227,  239.  And,  in  our  opinion,  there  is  no  difference  be- 
tween the  case  of  a  restitution  in  specie  of  the  ship  itself 
and  a  restitution  in  value.  The  lien  reattaches  to  the  thing, 
and  to  whatever  is  substituted  for  it.  This  is  no  peculiar 
principle  of  the  admiralty.  It  is  found  incorporated  into 
the  doctrines  of  courts  of  common  law  and  equity.  The 
owner  and  the  lienholder,  whose  claims  have  been  wrong- 
fully displaced,  may  follow  the  proceeds  wherever  they  can 
distinctly  trace  them.  In  respect,  therefore,  to  the  proceeds 
of  the  ship,  we  have  no  difficulty  in  affirming  that  the  lien 
in  this  case  attaches  to  them.'  Nor  does  the  ruling  in  the 
CITY  OF  NORWICH,  supra,  that  the  proceeds  of  an  in- 
surance policy  need  not  be  surrendered  by  the  shipowner, 
conflict  with  the  decision  in  Sheppard  v.  Taylor.  The  de- 
cision as  to  insurance  was  placed  on  the  ground  that  the  in- 
surance was  a  distinct  and  collateral  contract,  which  the 
shipowner  was  at  liberty  to  make  or  not.  On  such  question 
there  was  division  of  opinion  among  the  writers  on  mari- 
time law  and  in  the  various  maritime  codes.  But,  as  shown 
by  the  full  review  of  the  authorities  found  in  the  opinion  oi 
the  court  and  in  tin-  dissent  in  the  CITY  OF  NORWICH, 
all  the  maritime  writers  and  codes  accord  in  the  conclusion 
that  a  surrender,  under  the  right  to  limit  liability,  must  be 
made  of  a  sum  received  by  the  owner  as  the  direct  result 
of  the  loss  of  the  ship,  and  which  is  the  legal  equivalent 
and  substitute  for  the  ship.  We  conclude  that  the  owner 
who  retains  the  sum  of  the  damages  which  have  been 
awarded  him  for  the  loss  of  his  ship  and  freight  has  not 


§  170)  MEASURE    OF   LIABILITY  371 

surrendered  'the  amount  or  value'  (section  4283,  Rev.  St. 
U.  S.)  of  his  interest  in  the  ship ;  that  he  has  not  given  up 
the  'whole  value  of  the  vessel''  (section  4284)  ;  that  he  has 
not  transferred  'his  interest  in  such  vessel  and  freight'  (sec- 
tion 4285).  It  follows  that  the  shipowner,  therefore,  in 
the  case  before  us,  to  the  extent  of  the  damages  paid  on 
account  of  the  collision,  was  liable  to  the  creditors  of  the 
ship,  and  the  libelants,  as  such  creditors,  were  entitled  to 
collect  their  claim,  it  being  less  in  amount  than  the  sum 
of  such  proceeds." 

SAME— FREIGHT 
170.  Pending  freight  must  be  surrendered. 

The  owner  is  also  required  to  surrender  pending  freight. 
This  has  been  held  to  include  demurrage,  and  prepaid  fare 
of  passengers.58 

If  any  freight  has  been  earned  or  prepaid  during  the  voy- 
age, the  owner  must  account  for  it;  but,  if  the  voyage  is 
broken  up,  so  that  no  freight  is  actually  earned,  then  he 
cannot  be  made  to  pay  it.59 

The  freight  to  be  surrendered  is  tjie  gross  freight  for  the 
voyage.60 

If  the  vessel  owner  is  carrying  his  own  goods,  he  must 
account  for  a  fair  freight  for  them.61 

A  government  subsidy  is  not  freight,  and  need  not  be 
surrendered.62 

§  170.  es  Giles  Loring  (D.  C.)  48  Fed.  463:  Main,  152  U.  S.  122, 
14  Sup.  Ct.  4S6,  38  L.  Ed.  381.  As  to  the  meaning  of  freight,  see 
ante,  p.  155,  §  72. 

59  CITY  OF  NORWICH,  118  U.  S.  46S,  6  Sup.  Ct.  1150,  30  L.  Ed. 
134. 

eo  Abbie  C.  Stubbs  (D.  C.)  2S  Fed.  719. 

6i  Allen  v.  Maekay,  1  Spr.  219.  Fed.  Cas.  No.  228. 

6  2  Deslions  v.  La  Compagnie  Generate  Transatlantique,  210  U.  S. 
95.  28  Sup.  Ct.  664.  52  L.  Ed.  973. 


372  RIGHTS  AND  LIABILITIES   OP   OWNERS  ( Ch.  16 


SAME— SALVAGE  AND  INSURANCE 

171.  Salvage  and  insurance  need  not  be  surrendered,  neither 
being  an  interest  in  the  vessel  or  freight. 

But  the  owner  is  not  required  to  account  for  salvage  earn- 
ed during  the  voyage.63 

And,  if  he  has  taken  out  insurance,  he  is  not  required  to 
account  for  the  insurance  money  collected  by  him ;  that 
being  a  collateral  undertaking,  and  not  an  interest  in  the 
vessel.  On  this  subject  Mr.  Justice  Bradley  says  in  the 
CITY  OF  NORWICH.64 

"The  next  question  to  be  considered  is  whether  the  peti- 
tioners were  bound  to  account  for  the  insurance  money  re- 
ceived by  them  for  the  loss  of  the  steamer,  as  a  part  of  their 
interest  in  the  same.  The  statute  (section  4283)  declares 
that  the  liability  of  the  owner  shall  not  exceed  the  amount 
or  value  of  his  interest  in  the  vessel  and  her  freight;  and 
section  4285  declares  that  it  shall  be  a  sufficient  compliance 
with  the  law  if  he  shall  transfer  his  interest  in  such  vessel 
and  freight,  for  the  benefit  of  claimants,  to  a  trustee.  Is 
insurance  an  interest  in  the  vessel  or  freight  insured,  within 
the  meaning  of  the  law?  That  is  the  precise  question  be- 
fore us. 

"It  seems  to  us,  at  first  view,  that  the  learned  justice  who 
decided  the  case  below  was  right  in  holding  that  the  word 
'interest'  was  intended  to  refer  to  the  extent  or  amount  of 
ownership  which  the  party  had  in  the  vessel,  such  as  his 
aliquot  share,  if  he  was  only  a  part  owner,  or  his  contingent 
interest,  if  that  was  the  character  of  his  ownership.  He 
might  be  absolute  owner  of  the  whole  ship,  or  he  might  own 
but  a  small  fractional  part  of  her,  or  he  might  have  a  tem- 

§  171.    es  in  re  Meyer  (D.  C.)  74  Fed.  8S1. 

«4  118  U.  S.  468,  6  Sup.  Ct  1150,  30  L.  Ed.  134.  See,  also,  Pere 
Marquette  18  (D.  C.)  203  Fed.  127. 


§172)  PROCEDURE  373 

porary  or  contingent  ownership  of  some  kind,  or  to  some 
extent.  Whatever  the  extent  or  character  of  his  ownership 
might  be — that  is  to  say,  whatever  his  interest  in  the  ship 
might  be — the  amount  or  value  of  that  interest  was  to  be 
the  measure  of  his  liability. 

"This  view  is  corroborated  by  reference  to  a  rule  of  law 
which  we  suppose  to  be  perfectly  well  settled,  namely,  that 
the  insurance  which  a  person  has  on  property  is  not  an  in- 
terest in  the  property  itself,  but  is  a  collateral  contract, 
personal  to  the  insured,  guarantying  him  against  loss  of 
the  property  by  fire  or  other  specified  casualty,  but  not 
conferring  upon  him  any  interest  in  the  property.  That  in- 
terest he  has  already,  by  virtue  of  his  ownership.  If  it  were 
not  for  a  rule  of  public  policy  against  wagers,  requiring  in- 
surance to  be  for  indemnity  merely,  he  could  just  as  well 
take  out  insurance  on  another's  property  as  on  his  own ; 
and  it  is  manifest  that  this  would  give  him  no  interest  in 
the  property.  He  would  have  an  interest  in  the  event  of  its 
destruction  or  nondestruction,  but  no  interest  in  the  prop- 
erty. A  man's  interest  in  property  insured  is  so  distinct 
from  the  insurance  that,  unless  he  has  such  an  interest  in- 
dependent of  the  insurance,  his  policy  will  be  void." 


PROCEDURE— TIME  FOR  TAKING  ADVANTAGE 
OF  STATUTE 

172.  The  owner  may  take  advantage  of  the  statute  at  any 
time  before  he  is  actually  compelled  to  pay  the 
money. 

Under  the  American  practice,  he  may  contest  his  liability 
for  any  damages  at  all,  fight  that  through  all  the  courts, 
and,  if  finally  defeated,  take  advantage  of  the  statute.65 

§  172.  «5  BENEFACTOR,  103  U.  S.  239,  26  L.  Ed.  351;  S.  A.  Mc- 
Caulley  (D.  C.)  99  Fed.  302. 


374  RIGHTS    AND    LIABILITIES    OF    OWNERS  (Ch.  16 

He  does  not  lose  his  right  by  giving  bond  in  the  original 
suit,  either  in  the  trial  court  or  the  appellate  court,  or  by 
failure  to  have  an  appraisal  or  otherwise  follow  strictly  the 
procedure  prescribed.06 

SAME— DEFENSE  TO  SUIT  AGAINST  OWNER,  OP- 
INDEPENDENT  PROCEEDING 

173.  The  statute  may  be  set  up  either  by  defense  to  a  suit 
brought  against  the  owner,  or  by  an  independent 
proceeding  under  the  federal  admiralty  rules. 

If  it  is  desired  to  defend  against  one  claim,  the  simplest 
method  is  by  answer  or  plea  in  the  suit  asserting  that  claim 
against  the  owner.  Hence  it  is  settled  that  this  is  a  proper 
mode  of  taking  advantage  of  the  statute,  and  it  may  be  in- 
voked either  in  the  federal  or  state  courts.67 

Where  the  claims  are  many,  and  it  is  desired  to  convene 
them  all  in  one  proceeding,  the  usual  method  is  by  petition 
in  the  federal  court.  The  procedure  on  these  petitions  is 
regulated  by  admiralty  rules  54-5S.68 

Such  a  petition  may  be  filed,  though  but  one  claim  is 
being  asserted  against  the  ship  or  owner.69 

It  may  be  filed  before  any  suit  is  brought  at  all  against 
the  owner.70 

ee  Rochester  (D.  C.)  230  Fed.  519;  T.  W.  Wellington  (D.  C.)  235 
Fed.  728 ;    Ethelstan  (D.  C.)  246  Fed.  1ST. 

§  173.  67  SCOTLAND,  105  U.  S.  24.  26  L.  Ed.  1001;  Great  West- 
ern. 118  U.  S.  520,  6  Sup.  Ct.  1172,  30  L.  Ed.  156;  Loughin  v.  Mc- 
Caulley,  186  Pa.  .",17.  40  Atl.  1020,  48  L.  R.  A.  33,  65  Am.  St.  Rep.  872. 

es  As  this  treatise  is  on  admiralty  jurisdiction,  and  can  only 
cursorily  allude  to  procedure,  the  discussion  of  procedure  on  this 
acl  will  necessarily  be  very  brief.  The  reader  is  referred  to  the 
excellent  treatise  of  Mr.  Benedict  on  Admiralty  for  further  details 
of  procedure. 

69  White  v.  Island  Transp.  Co.,  233  U.  S.  346,  34  Sup.  Ct.  589,  58 
L.  Ed.  993;    Strong  v.  lb. Inns.  238  Fed.  554,  151  C.  C.  A.  490. 

70  Es  parte  Slayton,  105. U.  S.  451.  26  I,  Kd.  1066. 


§  174)  METHOD   OF    DISTRIBUTION  375 

If  suits  are  pending  against  the  owner  in  other  jurisdic- 
tions, the  proceeding  in  the  admiralty  court  is  exclusive; 
and  litigants  in  the  other  courts  may  be  enjoined  from  lit- 
igating further  in  those  courts,  and  may  be  compelled  to 
come  into  the  admiralty  court.  This  is  one  of  the  cases  in 
which  injunctions  to  proceedings  in  state  courts  are  not  for- 
bidden by  section  720  of  the  Revised  Statutes.71 

METHOD  OF  DISTRIBUTION 

174.  Under  the  express  provisions  of  the  statute,  all  claims 
filed,  whether  they  have  an  admiralty  lien  attached 
or  are  mere  personal  claims  against  the  owner,  are 
paid  pro  rata.72 

This  pro  rata  rule  applies  simply  to  the  claims  on  the 
voyage,  which,  as  seen  above,  is  taken  as  the  unit.  Ques- 
tions of  priority  as  between  those  claims  and  claims  on  oth- 
er voyages  cannot  well  arise  in  the  proceeding;  for  it  has 
been  seen  that,  when  the  owner  seeks  the  benefit  of  the 
statute,  he  must  surrender  the  res  clear  of  all  prior  liens 
or  claims  against  it.  Hence,  under  this  procedure,  the  court 
has  in  its  possession  an  unincumbered  res,  and  divides  that 
pro  rata  among  those  who  have  suffered  on  that  special 
voyage,  regardless  of  the  marshaling  of  other  claims  which 
would  take  place  if  no  proceeding  for  limitation  of  liability 
was  pending. 

7i  U.  S.  Comp.  St.  §  1242 ;  PROVIDENCE  &  N.  Y.  S.  S.  CO.  v. 
HILL  MFG.  CO.,  109  U.  S.  57S,  3  Sup.  Ct.  379,  617.  27  L.  Ed.  103S : 
In  re  Whitelaw  (D.  C.)  71  Fed.  733,  735 ;  San  Pedro,  223  U.  S.  365. 
32  Sup.  Ct.  275,  56  L.  Ed.  473,  Ann.  Cas.  1913D,  1221  (holding  also 
that  an  injunction  is  not  necessary,  and  that  the  proceeding  itself 
has  the  effect  of  a  statutory  injunction). 

§  174.  7  2  Butler  v.  Boston  &  S.  S.  S.  Co.,  130  U.  S.  527,  9  Sup.  Ct. 
612,  32  L.  Ed.  1017;  Maria  &  Elizabeth  (D.  C.)  12  Fed.  627;  Cats- 
kill  (D.  C.)  95  Fed.  700;  St  Johns  (D.  C.)  101  Fed.  469;  Glaholin  v. 
Barker,  L.  R.  2  Eq.  59S ;  Id.,  1  Ch.  App.  223;  Boston  Marino  Ins. 
Co.  v.  Metropolitan  Redwood  Lumber  Co.,  197  Fed.  703,  117  C.  C. 
A.  97. 


376  EELATIVE   PRIORITIES   OF  MARITIME   LIENS       (Ch.  17 


CHAPTER  XVII 

OF  THE   EELATIVE   PRIORITIES    OF    MARITIME   LIENS    AS 

AMONG  EACH  OTHER  AND  ALSO  AS  BETWEEN  THEM 

AND  NONMARITIME  LIENS  OR  TITLES* 

175.  Relative  Rank  as  Affected  by  Nature  of  Claims. 
176-177.  Contract  Liens  in  General. 

178.  Seamen's    Wages. 

179.  Salvage. 

ISO.  Materials,  Supplies,  Advances,  Towage,  Pilotage,  and 

General  Average. 

181.  Bottomry. 

182.  Nonmaritime  Liens  and  Titles. 

183.  Tort  Liens. 

184.  Relative   Rank   as  Affected  by   Date  of  Vesting — Among 

Liens  of  Same  Cbaracter. 

185.  Among  Liens  of  Different  Cbaracter. 

186.  Between  Contract  and  Tort  Liens. 

187.  As  between  Tort  Liens. 

188.  Relative  Rank  as  Affected  by  Suit  or  Decree. 


RELATIVE  RANK  AS  AFFECTED  BY  NATURE  OF 

CLAIMS 

175.  The  order  in  which  liens  are  paid  depends  upon  four 
contingencies: 

(a)  Their  relative  merit. 

(b)  The  time  at  which  the  lien  vested. 

(c)  The  date  at  which  proceedings  are  commenced  for  its 

enforcement. 

(d)  The  date  of  the  decree. 

The  relative  rank  of  maritime  liens  is  the  subject  of  much 

conflicting  decision,  from  which  it  is  impossible  to  extract 

any   inflexible   general   rule.     While   there  are   elementary 

•Modified  by  Merchant  Marine  Act  approved  June  5,  1020,  passer 
too  late  for  discussion. 


§§  176-177)        RANK  AS  AFFECTED  BY  NATURE  OF  CLAIMS       377 

principles  underlying-  the  doctrine,  they  may  be  affected  at 
any  time  by  special  equities  or  circumstances  superseding 
the  general  principles,  and  forming  an  exception  to  them. 
On  this  subject,  Judge  Brown,  when  District  Judge  of  the 
Eastern  District  of  Michigan,  said  in  the  CITY  OF  TA- 
WAS:1 

"The  subject  of  marshaling  liens  in  admiralty  is  one 
which,  unfortunately,  is  left  in  great  obscurity  by  the  au- 
thorities. Many  of  the  rules  deduced  from  the  English  cas- 
es seem  inapplicable  here.  So,  also,  the  principles  applied 
where  the  contest  is  between  two  or  three  libelants  would 
result  in  great  confusion  in  cases  where  50  or  60  libels  are 
filed  against  the  same  vessel.  The  American  authorities, 
too,  are  by  no  means  harmonious,  and  it  is  scarcely  too 
much  to  say  that  each  court  is  a  law  unto  itself." 

This  marshaling  of  liens,  being  intended  to  work  justice 
among  the  lienors,  should  not  be  so  applied  as  to  work  in- 
jury to  third  parties.2 

SAME— CONTRACT  LIENS  IN  GENERAL 

i 

176.  These  must  first  be  considered  in  reference  to  their 

general  nature,  as  there  is  supposed  to  be  an  in- 
herent merit  in  certain  ones  over  others,  in  the  ab- 
sence of  special  equities  arising  from  the  compara- 
tive dates  of  their  service  and  other  considera- 
tions. 

177.  Among  contract  liens  in  general  the  order  of  rank  may 

be  stated: 

(a)  Seamen's  wages. 

(b)  Salvage. 

(c)  Materials,  supplies,  advances,  towage,  pilotage,  and 

general  average. 

(d)  Bottomry. 

(e)  Nonmaritime  liens  and  titles. 

§  175.     i  (D.  C.)  3  Fed.  170. 
2  Chioggia,  [1S98]  P.  1. 


^78  RELATIVE    PRIORITIES    OF   MARITIME    LIENS         (Ch.  17 


SAME— SEAMEN'S  WAGES 

178.  It  is  a  favorite  principle  of  the  admiralty  that  seamen's 
wages  are  of  the  highest  rank  and  dignity,  adher- 
ing to  the  last  plank  of  a  ship,  and  ranking  all  oth- 
er contract  liens  of  the  same  relative  dates. 

In  the  Virgo,3  District  Judge  Benedict,  in  passing  upon 
their  rank  as  compared  to  salvage  and  other  supplies,  held 
them  to  rank  even  supplies  furnished  after  the  vessel  was 
brought  into  port  and  after  the  wages  had  accrued,  as  the 
supplies  were  of  a  nature  that  did  not  add  anything  to  the 
value  of  the  vessel,  and  as  the  time  was  so  short  that  the 
seamen  could  hardly  have  been  responsible  for  not  proceed- 
ing more  promptly.     In  the  opinion  he  says : 

"I  am  of  the  opinion,  therefore,  that  the  wages  of  the 
seamen,  which  are  nailed  to  the  last  plank  of  the  ship,  and 
which  under  no  circumstances  contributed  to  the  general 
average,  as  well  as  the  salvage  demand,  are  entitled  to  pri- 
ority in  payment  over  the  demands  of  the  other  libelants, 
no  one  of  whom,  it  will  be  observed,  in  any  degree  added  by 
their  services  to  the  value  of  the  vessel,  or  in  the  slightest 
degree  increased  the  fund  realized  from  her  sale.  It  is  a 
case  of  some  hardship  to  the  materialmen,  no  doubt,  but 
no  greater  than  in  the  ordinary  case  where  the  vessel 
proves  insufficient  in  value  to  pay  her  bills.  The  hardship 
in  this  case  arises,  not  from  any  fault  on  the  part  of  the 
salvors  or  the  seamen,  but  from  the  fact  that  the  material- 
men furnished  what  they  did  to  a  vessel  so  largely  incum- 
bered by  liens  superior  in  grade  to  their  demands." 

In  the  Paragon,4  Judge  Ware  said: 

"Among  privileged  debts  against  a  vessel,  after  the  ex- 
penses of  justice  necessary  to  procure  a  condemnation  and 

§  17S.     3  (D.  C.)  46  Fed.  294. 

4  i  Ware,  326,  Fed.  Cas.  No.  10.708. 


§  178)     RANK  AS  AFFECTED  BY  NATURE  OF  CLAIMS     370 

sale,  and  such  charges  as  accrue  for  the  preservation  of  the 
vessel  after  she  is  brought  into  port  (1  Valin,  Comm.  362; 
Code  Commer.  No.  191),  the  wages  of  the  crew  hold  the 
first  rank,  and  are  to  be  first  paid.  And  so  sacred  is  this 
privilege  held  that  the  old  ordinances  say  that  the  savings 
of  the  wreck,  are  to  the  last  nail,  pledged  for  their  payment. 
Consulat  de  la  Mer,  c.  138;  Cleirac  sur  Jugemens  d'Oleron, 
art.  8,  note  31.  And  this  preference  is  allowed  the  seamen 
for  their  wages  independently  of  the  commercial  policy  of 
rewarding  their  exertions  in  saving  the  ship,  and  thus  giv- 
ing them  an  interest  in  its  preservation.  The  priority  of 
their  privilege  stands  upon  a  general  principle  affecting  all 
privileged  debts;  that  is,  among  these  creditors  he  shall 
be  preferred  who  has  contributed  most  immediately  to  the 
preservation  of  the  thing.  2  Valin,  Comm.  12,  liv.  3,  tit.  5, 
art.  10.  It  is  upon  this  principle  that  the  last  bottomry  bond 
is  preferred  to  those  of  older  date,  and  that  repairs  and  sup- 
plies furnished  a  vessel  in  her  last  voyage  take  precedence 
of  those  furnished  in  a  prior  voyage,  and  that  the  wages  ot 
the  crew  are  preferred  to  all  other  claims,  because  it  is  by 
their  labors  that  the  common  pledge  of  all  these  debts  has 
been  preserved,  and  brought  to  a  place  of  safety.  To  all 
the  creditors  they  may  say,  'Salvam  fecimus  totius  pignoris 
causam.'  The  French  law  (Ord.  de  la  Mer.  liv.  1,  tit.  14,  art. 
16;  Code  Commer.  191)  confines  the  priority  of  the  seamen 
for  their  wages  to  those  due  for  the  last  voyage,  in  con- 
formity with  the  general  rule  applicable  to  privileged  debts ; 
that  is,  that  the  last  services  which  contribute  to  the  pres- 
ervation of  the  thing  shall  be  first  paid.  But  this  restric- 
tion is  inapplicable  to  the  engagements  of  seamen  in  short 
coasting  voyages,  which  are  not  entered  into  for  any  de- 
terminate voyage,  but  are  either  indefinite  as  to  the  terms 
of  the  engagement,  and  are  determined  by  the  pleasure  of 
the  parties,  or  are  for  some  limited  period  of  time." 

Wages  for  a  voyage  have  been  also  held  to  rank  a  bottom- 
ry- bond  executed  for  the  necessities  of  that  very  voyage, 


380  RELATIVE   PRIORITIES    OF   MARITIME    LIENS         (Ch.  17 

because,  but  for  the  efforts  of  the  seamen,  the  vessel  would 
not  have  reached  port,  and  the  bottomry  bondholder  would 
have  had  nothing  to  hold  for  his  claim.5 

If  they  rank  subsequent  materials  under  the  circum- 
stances just  explained,  a  fortiori  they  rank  materials  and 
supplies   practically   concurrent  with  them.6 

They  also  rank  salvage,  and  damage  claims  incurred  on  a 
previous  voyage,  under  the  principle,  which  we  have  seen 
running  through  the  admiralty  law,  that  the  prior  lienhold- 
ers  have  a  jus  in  re  or  a  proprietary  interest  in  the  ship  it- 
self, and  that  efforts  tending  to  the  preservation  of  the  res 
are  incurred  for  their  benefit.7 


SAME— SALVAGE 

179.  Salvage  may  rank  any  prior  lien  for  which  it  saves 
the  res. 

It  may  not  be  entirely  accurate  to  put  salvage  behind  even 
seamen's  wages  when  we  consider  its  nature. 

The  salvor  ranks  seamen's  wages  incurred  prior  to  the 
salvage  services,  upon  this  same  principle  that  it  tends  to 
the  preservation  of  the  res,  without  which  the  seamen  them- 
selves might  lose  their  security.8 

In  the  leading  case  of  the  FORT  WAYNE,9  the  court, 
discussing  this  question,  and  deciding  that  salvage  was 
ahead  of  prior  seamen's  wages,  says : 

"It  may  be  remarked  here  that  it  does  not  admit  of  doubt, 
nor  is  it  controverted  in  this  case,  that,  if  there  had  been  a 
salvage  service  rendered  by  the  wrecking  company  within 

o  DORA  (C.  C.)  34  Fed.  348;    Irma,  6  Ben.  1,  Fed.  Cas.  No.  7,004. 
■  Saylor  v.  Taylor,  23  C.  C.  A.  343,  77  Fed.  470. 
t  Lillie  Laurie  (C.  G.)  50  Fed.  219. 

§  179.     s  Selina,  2  Notes  Cas.  Ad.  &  Ec.  18 ;    Athenian  (D.  C)  3 
Fed.  24S. 
»  1  Bond,  470,  Fed.  Cas.  No.  3,012. 


§  179)    RANK  AS  AFFECTED  BY  NATURE  OF  CLAIMS      381 

the  meaning  of  the  maritime  law,  it  imports  a  lien  in  their 
favor  which  has  priority  over  claims  for  wages  earned,  or 
supplies  furnished,  before  the  sinking  of  the  boat.  This  is 
well-established  law,  and  has  its  basis  in  obvious  principles 
of  justice  and  reason.  Meritorious  salvors  stand  in  the  front 
rank  of  privilege,  and  the  rights  of  those  having  liens  before 
the  salvage  service  must  be  secondary  to  those  having  a  sal- 
vage claim.  This  principle  is  well  stated  in  Coote's  Ad- 
miralty Practice.  The  author  says  (page  116)  :  'The  suitor 
in  salvage  is  highly  favored  in  law,  on  the  assumption  that, 
without  his  assistance,  the  res  might  have  been  wholly  lost. 
The  service  is,  therefore,  beneficial  to  all  parties  having 
either  an  interest  in  or  a  claim  to  the  ship  and  her  freight 
and  cargo.'  And  again  (page  117),  it  is  laid  down  that  'sal- 
vage is  privileged  before  the  original  or  prior  wages  of  the 
ship's  crew,  on  the  ground  that  they  are  saved  to  them  as 
much  as,  or  eadem  ratione  qua,  the  ship  is  saved  to  the 
owners.'  This  doctrine  is  so  well  settled,  both  by  the  Eng- 
lish and  American  authorities,  that  it  is  useless  to  multiply 
citations." 

For  the  same  reason  salvage  is  superior  in  dignity  to  ma- 
terials and  supplies.10 

It  is  also  ahead  of  the  cargo's  claim  for  general  average 
arising  out  of  a  jettison  on  the  voyage  when  the  vessel  was 
subsequently  wrecked,  since  the  salvor  saved  the  only 
property  against  which  the  claim  for  general  average  could 
be  asserted.11 

Judge  Longyear,  in  delivering  the  opinion,  says : 

"It  was  conceded  on  the  argument,  and  such  is  undoubt- 
edly the  law,  that  the  lien  for  salvage  takes  precedence  of 
the  lien  for  general  average.  The  libel  of  the  insurance 
companies  in  this  case  is  in  terms  for  general  average,  and 
I  can  see  nothing  in  the  circumstances  of  the  case  to  war- 

io  M.  Vandercook  (D.  C.)  24  Fed.  472;  Virgo  (D.  C.)  46  Fed.  294; 
Lillie  Laurie  (C.  C.)  50  Fed.  219. 

n  Spaulding,  1  Brown,  Ad.  310,  Fed.  Cas.  No.  13,215. 


382  RELATIVE    PRIORITIES    OF    MARITIME    LIENS  (Ch.  17 

rant  the  court  in  holding  it  to  be  anything  else,  even  if  the 
libel  had  been  otherwise.  Without  the  salvage  services,  the 
whole  was  a  loss.  With  the  salvage  services,  the  loss  is 
reduced  to  a  part  only.  In  the  former  case  there  would 
have  been  nothing  left  upon  which  a  lien  for  general  aver- 
age could  attach.  In  the  latter  case  it  has  something  upon 
which  it  may  attach,  solely  because  of  the  salvage  services ; 
and  it  would  be  not  only  contrary  to  the  general  rule  of  law 
above  stated,  but  unjust  and  inequitable,  to  place  such  lien 
as  to  the  part  thus  saved  upon  the  same  footing,  as  to 
precedence,  as  the  lien  for  the  salvage  services." 

SAME— MATERIALS,  SUPPLIES,  ADVANCES, 
TOWAGE,  PILOTAGE,  AND  GEN- 
ERAL AVERAGE 

180.  Materials,  supplies,  advances,  towage,  pilotage,  and 
general  average  are,  in  the  absence  of  special  cir- 
cumstances, equal  in  dignity. 

These  may  be  considered  as  of  the  same  relative  rank, 
in  the  absence  of  special  circumstances  or  equities. 

For  some  time  there  was  quite  a  conflict  in  the  decisions 
on  the  question  whether  the  liens  of  materialmen  arising 
out  of  a  state  statute  were  equal  in  dignity  to  those  arising 
under  the  general  admiralty  law.  On  principle  there  is  no 
sound  reason  for  any  such  distinction.  The  only  reason 
why  these  state  statutes  are  given  force  at  all  is  that  the 
subject-matter  is  maritime  in  its  nature,  and  that  the  stat- 
utes merely  superadd  the  remedy  in  rem.  If  marine  in  its 
nature,  it  ought  to  be  marine  in  its  rights.  The  state  stat- 
ute adds  nothing  to  its  dignity  or  to  its  character.  It  mere- 
ly changes  a  presumption  of  credit.  Hence  the  later  author- 
ities have  settled  that  foreign  and  domestic  liens  of  mate- 
rial men  rank  alike.12 

§  180.  "Guiding  Star  (D.  C.)  9  Fed.  521;  Id.  (C.  C.)  18  Fed. 
264;    Wyoming  (D.  (\)   35  Fed.  548.     This  question  is  unimportant 


§  180)  RANK   AS   AFFECTED    BY   NATURE    OF   CLAIMS  383 

Claims  of  this  nature  also  rank  a  prior  bottomry.  In  the 
Jerusalem,13  Mr.  Justice  Story  gives  the  reason  for  this.  He 
says : 

"If,  then,  the  repairs  in  this  case  were  a  lien  on  the  ship, 
it  remains  to  consider  whether  they  constitute  a  privileged 
lien,  entitled  to  a  preference  over  a  bottomry  interest;  for 
the  proceeds  now  in  court  are  insufficient  to  answer  both 
claims.  In  point  of  time  the  bottomry  interest  first  at- 
tached, and  the  right  became  absolute  by  a  completion  of 
the  voyage  before  the  repairs  were  made.  Upon  general 
principles,  then,  the  rule  would  seem  to  apply,  'Qui  prior 
est  tempore,  potior  est  jure.'  But  it  is  to  be  considered  that 
the  repairs  were  indispensable  for  the  security  of  the  ship, 
and  actually  increased  her  value.  They  are,  therefore,  not 
like  a  dry  lien  by  way  of  mortgage,  or  other  collateral  title. 
The  case  is  more  analogous  to  that  of  a  second  bottomry 
bond,  or  the  lien  of  seamen's  wages,  which  have  always 
been  held  to  have  a  priority  of  claim,  although  posterior  in 
time,  to  the  first  bottomry  bond.  Let  a  decree  be  entered 
for  payment  of  the  sum  claimed  by  the  petitioner  out  of 
the  proceeds  of  the  sale." 

In  the  Felice  B.,14  Judge  Benedict  gave  preference,  under 
similar  circumstances,  because  the  repairs  went  into  the 
ship,  and  tended  to  increase  her  value,  and  to  enhance  to 
that  extent  the  price  which  she  brought  at  auction;  and 
he  therefore  thought  it  inequitable  that  the  bottomry  bond- 
holder should  claim  this  increment,  which  was  not  in  ex- 
istence when  he  loaned  his  money. 

As  to  the  relative  rank  of  claims  for  unpaid  towage  and 
claims  of  materialmen,  there  is  no  reason  for  any  distinc- 

now,  as  the  liens  both  of  foreign  and  domestic  materialmen  are 
regulated  by  the  act  of  Congress  of  June  23,  1910  (36  Stat.  604,  U.  S. 
Comp.  St.  §§  7783-7787). 

13  2  Gall.  345,  Fed.  Cas.  No.  7,294. 

14  (D.  C.)  40  Fed.  653.     See,  also,  Aina  (D.  C.)  40  Fed.  269. 


3S4  RELATIVE   PRIORITIES   OP   MARITIME   LIENS         (Ch.  17 

tion  between  them,  in  the  absence  of  special  equities,  and 
the  courts  put  them  upon  the  same  basis.15 

But  in  the  Mystic,16  Judge  Blodgett  seemed  to  look  upon 
tugboat  men  with  special  favor.  The  case  arose  in  the  city 
of  Chicago,  where  the  ordinances  required  vessels  to  use 
tugs,  and  where,  on  account  of  the  narrow  and  crowded 
channels,  it  is  a  physical  impossibility  for  sail  vessels  to 
reach  their  destination  without  tugs.  Under  these  special 
circumstances  he  held  that  the  value  of  the  towage  service 
was  about  equal  to  that  of  the  seamen,  as  the  tug  was  doing 
seamen's  work,  and  he  placed  the  tow  bills  immediately 
after  the  seamen's  wages,  and  ahead  of  domestic  supply 
claims. 

In  England  claims  for  necessaries  on  domestic  ships  do 
not  rank  as  maritime  liens,  their  act  of  Parliament  being 
held  to  give  a  mere  right  of  arrest.17 


SAME— BOTTOMRY 

181.  Bottomry  ranks  low  among  maritime  liens,  as  the  lend- 
er is  paid  for  the  risk  he  runs  by  a  high  rate  of  in- 
terest. 

Among  bottomry  bonds  on  the  same  voyage,  though  the 
dates  may  be  slightly  different,  there  is  no  priority.18  But 
the  bottomry  bondholder  is  relegated  to  the  background 
when  he  comes  in  competition  with  seamen's  wages,  sal- 
vage, materials,  or  a  claim  for  general  average  arising  on 

is  Saylor  v.  Taylor,  23  C.  C.  A.  343,  77  Fed.  476;  Sea  Witch,  3 
Woods,  75,  Fed.  Cas.  No.  11,289. 

is  (D.  C.)  30  Fed.  73.  In  the  Olga  (D.  C.)  32  Fed.  329,  Judge 
Brown,  of  New  York,  classified  towage  service  taken  necessarily  and 
as  part  of  a  pilotage  service  in  the  same  way ;  but  he  carefully  dis- 
tinguished this  from  ordinary  towage. 

it  Mayer's  Admiralty  Jur.  &  Pr.  25,  47,  51;    Sara,  14  A.  C.  209. 

§  181.     is  DORA  (D.  C.)  34  Fed.  343. 


§  181)   BANK  AS  AFFECTED  BY  NATURE  OF  CLAIMS      385 

the  same  voyage.19  The  reason  is  that  he  stands  in  the 
shoes  of  the  owner,  and  has,  as  heretofore  explained,  a  pro- 
prietary interest  in  the  ship,  which  estops  him  from  ques- 
tioning the  priority  of  maritime  liens  to  supply  her,  or  to 
render  her  more  valuable.  In  addition,  he  can  charge  a 
premium  on  the  ship  at  a  high  rate  of  interest.  He  there- 
fore becomes  practically  an  insurer  against  perils  of  the 
sea,  and,  when  they  arise,  he  cannot  be  heard  to  complain 
that  those  who  labored  to  rescue  the  vessel  from  them 
should  be  preferred  in  the  distribution.  Accordingly,  these 
claims  for  general  average  arising  on  the  voyage,  and  the 
claims  of  the  agents  at  the  port  of  destination  for  putting 
the  ship  in  better  shape,  are  preferred  to  a  bottomry  bond. 
On  this  point  Judge  Billings  says  in  the  Dora: 20 

"Whoever  lends  money  upon  a  bottomry  obligation  for 
the  ordinary  transactions  of  her  voyage  has  a  lien  upon  the 
vessel  which  outranks  all  lien  holders  save  the  mariners 
for  their  wages.  But  where  maritime  services  or  sacrifices 
or  expenditures  are  rendered  necessary  which  carry  with 
them  maritime  liens,  the  holder  of  the  bottomry  bond,  like 
any  other  mortgagee  or  pledgee,  has  his  conditional  interest 
burdened  precisely  as  if  he  were  to  that  extent  an  owner. 
Indeed,  the  bottomry  holder  can  be  no  more  than  absolute 
owner,  so  far  as  third  persons  are  concerned.  To  hold  any 
more  restricted  doctrine  would  prejudice  the  interests  of 
the  bottomry  holder  himself.  It  is  for  his  interest,  as  well 
as  for  that  of  all  other  absolute  or  conditional  owners,  that 
the  whole  should  be  saved  by  a  sacrifice  of  a  part,  and  that 
the  whole  thus  saved  should  contribute  to  make  good  the 
sacrifice,  and  that  salvors  and  all  others  who  render  benefits 
which  save  or  render  available  the  bottom  pledged  to  him 
should  have  a  lien  upon  that  bottom,  even  against  him.  See 
Williams  &  B.  Adm.  Jur.  64,  65,  and  Macl.  Shipp.  702-705. 
I  think  that,  upon  reason  and  authority,  the  general  average 

18  id. 

20  See,  also,  ALINE,  1  W.  Rob.  Ad.  112. 
Hughes.Adm.  (2d  Ed.) — 25 


386  RELATIVE   PRIORITIES   OF    MARITIME    LIENS        (Ch.  17 

should  be  paid  before  the  bottomry  bonds.  The  transac- 
tions out  of  which  the  general  average  arose  were  subse- 
quent to  these  bonds,  and  aided  in  providing  and  making- 
available  the  bottom  which  these  bonds  contingently  rep- 
resented." 


SAME— NONMARITIME  LIENS  AND  TITLES 

182.  Nonmaritime   liens   and   titles   rank    below   maritime 
liens. 

The  mortgagee  is  worse  off  than  any,  for  his  claim  is  not 
marine.  He  claims  through  the  owner,  from  whom  he  is 
only  one  step  removed,  and  accordingly  all  marine  claims 
are  preferred  to  his  debt ;  and  recording  it  under  section 
4192  of  the  Revised  Statutes  (U.  S.  Comp.  St.  §  7778)  does 
not  affect  this  principle.21 

A  maritime  lien  is  not  displaced  by  a  sale  to  an  innocent 
purchaser,  in  the  absence  of  laches  in  its  enforcement,  nor 
by  a  common-law  reservation  of  title.22 

The  possessory  lien  of  a  shipwright  will  be  recognized 
when  a  ship  is  seized  under  admiralty  process.  If  the  work 
is  of  a  nature  that  would  create  a  maritime  lien,  it  will  be 
treated  as  such.  If  not,  it  will  be  classified  as  a  common- 
law  lien,  and  protected  in  the  distribution  of  the  remnants 
after  the  satisfaction  of  maritime  liens.23 

§  182.     21  J.  E.  RUMBELL,  14S  U.  S.  1,  13  Sup.  Ct.  408,  37  L.  Ed. 
345.    The  mortgagee  has  the  same  right  as  the  owner  through  whomi 
he  claims  to  intervene  and  defend  against  liens  asserted  to  be  prior, 
and   to  claim  the  remnants  after  the  maritime  liens  are  satisfied. 
Conveyor  (D.  C.)  147  Fed.  5S6 ;    Rupert  City  (D.  C.)  213  Fed.  263. 

22  San  Raphael,  141  Fed.  270.  72  0.  C.  A.  3S8;  Hope  (D.  C.)  191 
F.'d.  243. 

23  Ulrica  (D.  C.)  224  Fed.  140;  John  J.  Freitus  1 1  >.  C)  252  Fed. 
S7G. 


§  183)        RANK    AS   AFFECTED    BY    NATURE    OF   CLAIMS  387 


SAME— TORT  LIENS 

183.  These  claims,  whether  for  pure  torts  or  torts  where 
there  are  also  contract  relations,  rank  prior  con- 
tract liens,  and  probably  subsequent  contract  liens, 
where  the  contract  claimant  has  an  additional  rem- 
edy against  the  owner. 

These  claims,  as  a  general  rule,  rank  prior  contract 
claims.  The  leading  case  on  this  subject  is  the  JOHN  G. 
STEVENS.24  Mr.  Justice  Gray,  in  delivering  the  opinion 
of  the  court  in  that  case,  says: 

"The  collision,  as  soon  as  it  takes  place,  creates,  as  se- 
curity for  the  damages,  a  maritime  lien  or  privilege — jus  in 
re — a  proprietary  interest  in  the  offending  ship,  and  which, 
when  enforced  by  admiralty  process  in  rem,  relates  back  to 
the  time  of  the  collision.  The  offending  ship  is  considered 
as  herself  the  wrongdoer,  and  as  herself  bound  to  make 
compensation  for  the  wrong  done.  The  owner  of  the  in- 
jured vessel  is  entitled  to  proceed  in  rem  against  the  offend- 
er, without  regard  to  the  question  who  may  be  her  owners, 
or  to  the  division,  the  nature,  or  the  extent  of  their  interests 
in  her.  With  the  relations  of  the  owners  of  those  interests, 
as  among  themselves,  the  owner  of  the  injured  vessel  has 
no  concern.  All  the  interests  existing  at  the  time  of  the 
collision  in  the  offending  vessel,  whether  by  way  of  part 
ownership,  of  mortgage,  of  bottomry  bond,  or  of  other  mar- 
itime lien  for  repairs  or  supplies,  arising  out  of  contract 
with  the  owners  or  agents  of  the  vessel,  are  parts  of  the 
vessel  herself,  and  as  such  are  bound  by  and  responsible 
for  her  wrongful  acts.  Any  one  who  had  furnished  neces- 
sary supplies  to  the  vessel  before  the  collision,  and  had 
thereby  acquired,  under  our  law,  a  maritime  lien  or  privi- 

§  1S3.  2  4  170  U.  S.  113,  IS  Sup.  Ct.  544.  42  L.  Ed.  969.  See,  also, 
Escauaba  (D.  C.)  96  Fed.  252 ;    Veritas,  [1901]  P.  304. 


388  RELATIVE   PRIORITIES   OF  MARITIME   LIENS        (Cll.  17 

lege  in  the  vessel  herself,  was,  as  was  said  in  the  Bold  Buc- 
cleugh,  before  cited,  of  the  holder  of  an  earlier  bottomry- 
bond,  under  the  law  of  England,  'so  to  speak,  a  part  owner 
in  interest  at  the  date  of  the  collision,  and  the  ship  in  which 
he  and  others  were  interested  was  liable  to  its  value  at  that 
date  for  the  injury  done,  without  reference  to  his  claim.'  1 
Moore,  P.  C.  285." 

This  reasoning  is  a  necessary  deduction  from  the  doc- 
trine, that  an  admiralty  claimant  has  not  merely  a  right  to 
arrest  a  vessel,  but  a  proprietary  interest  in  the  vessel  it- 
self— a  jus  in  re.  Consequently,  any  contract  claimant  who 
permits  the  vessel  against  which  he  has  a  claim  to  be  nav- 
igated assumes  the  risks  of  navigation  to  that  extent,  and 
holds  her  out  to  the  world  as  liable  to  those  with  whom  she 
is  brought  into  relations  even  involuntarily  on  their  part. 
The  only  question  directly  decided  in  this  case  was  that  a 
claim  for  damages  from  negligent  towage  ranked  a  prior 
claim  for  materials  and  supplies.  The  questions  as  to  all 
other  contracts  were  carefully  reserved  by  the  court,  but 
the  line  of  reasoning  which  the  court  follows  is  equally  ap- 
plicable to  any  other  contract  claim. 

On  this  question  the  earlier  decisions  in  the  New  York 
circuit,  which  are  usually  of  such  high  authority  that  the 
admiralty  lawyer  instinctively  turns  to  them  first,  cannot 
now  be  relied  on.  The  JOHN  G.  STEVENS  cites  a  num- 
ber of  them  for  the  purpose  of  deciding  adversely  to  the 
doctrine  which  they  had  promulgated.  It  had  been  the 
preponderance  of  authority  in  that  circuit  that  contract 
claims  ranked  tort  claims.  The  principal  reason  given  for 
this  was  that  these  tort  claims  were  perils  of  the  sea, 
against  which  the  owner  could  insure.  In  arriving  at  that 
decision  the  New  York  judges  had  discussed  the  English 
cases  on  which  the  contrary  doctrine  had  been  based,  and 
concluded  that  they  had  not  passed  upon  the  question  at 
all,  but  were  governed  by  peculiar  circumstances  arising 
out  of  the  fact  that  the  vessels  in  the  English  cases  had 


§  183)    RANK  AS  AFFECTED  BY  NATURE  OF  CLAIMS      389 

nearly  always  been  foreign  vessels.  The  New  York  judges 
also  had  attempted  to  draw  a  distinction  between  claims  of 
pure  tort  and  claims  of  quasi  tort  arising  out  of  contract. 
This  was  to  meet  the  suggestion  of  Dr.  Lushington  in  the 
ALINE,25  in  which  he  had  said  that  the  contract  creditor 
had  his  option  whether  to  deal  with  the  ship  or  not,  but  the 
tort  creditor  had  not.  Accordingly,  the  New  York  courts 
argued  that  this  principle  could  only  apply  to  torts  like 
collision,  in  any  event,  and  could  not  apply  to  cases  arising 
out  of  negligent  towage,  or  other  such  cases  arising  out  of 
contract,  though  torts  in  form,  where  there  had  been  such 
negligence.  This  distinction,  also,  is  overruled  by  the 
JOHN  G.  STEVENS,26  which  was  a  case  of  negligent  tow- 
age, and  in  which  the  Supreme  Court,  after  considering  the 
question  fully,  decided  that  cases  of  tort,  whether  arising 
out  of  contract  or  not,  all  stood  on  the  same  basis. 

The  JOHN  G.  STEVENS  reserves  the  question  whether 
the  claim  for  tort  should  be  preferred  to  a  prior  claim  for 
seamen's  wages,  but  the  reasoning  of  that  case  applies  with 
equal  force  to  claims  of  as  high  merit  as  seamen's  wages, 
and  it  is  believed  that,  when  the  question  is  fairly  present- 
ed, a  preference  will  be  given  to  tort  claims  even  over  claims 
for  prior  wages.27 

The  ELIN  2S  decides  that  preference  should  be  given 
even  to  subsequent  wages  on  the  same  voyage.  On  this 
point  Sir  Robert  Phillimore  quoted  approvingly  from  an 
opinion  of  Dr.  Lushington,  as  follows : 

"I  adhere  to  this  opinion,  and  I  do  so  especially  for  the 

25 1  W.  Rob.  Ad.  112. 

2  6  170  U.  S.  113,  IS  Sup.  Ct.  544,  42  L.  Ed.  9G9. 

2  7  Rusk  v.  Freestone,  2  Bond,  234,  Fed.  Cas.  No.  12.143;  F.  H. 
Stanwood,  49  Fed.  577,  1  C.  C.  A.  379;  Nettie  Woodward  (D.  C.)  50 
Fed.  224 ;  Evolution  (D.  C.)  199  Fed.  514.  But  in  the  New  York  dis- 
trict the  John  G.  Stevens  decision  is  still  applied  strictly,  and  sea- 
men not  in  fault  are  preferred  to  collision  liens.  C.  J.  Saxe  (D.  C.) 
145  Fed.  749. 

zs  8  P.  D.  39. 


390  RELATIVE    PKIORITIES   OF   MARITIME    LIENS  (Ch.  17 

following  reasons :  That  by  the  maritime  law  of  ail  the 
principal  maritime  states  the  mariner  has  a  lien  on  the  ship 
for  his  wages  against  the  owner  of  that  ship.  That  he  has 
also  a  right  of  suing  the  owner  for  wages  due  to  him.  That 
some  uncertainty  may  exist  as  to  the  mariner's  lien  when 
in  competition  with  other  liens  or  claims,  and  amongst  these 
I  might  instance  the  case  of  a  ship  in  the  yard  of  a  ship- 
wright. In  such  a  case  I  should  have  no  difficulty  in  say- 
ing that  the  lien  of  the  shipwright  would  be  superior  to  the 
lien  of  the  mariner.  That,  in  the  case  of  a  foreign  ship 
doing  damage  and  proceeded  against  in  a  foreign  court,  the 
injured  party  has  no  means  of  obtaining  relief  save  by  pro- 
ceeding against  the  ship  itself;  and  that,  I  apprehend,  is 
one  of  the  most  cogent  reasons  for  all  our  proceedings  in 
rem.  That,  in  a  case  where  the  proceeds  of  a  ship  are  in- 
sufficient to  compensate  for  damages  done,  to  allow  the 
mariner  to  take  precedence  of  those  who  have  suffered 
damage  would  be  to  exonerate  so  far  the  owner  of  the  ship, 
to  whom  the  damage  is  imputed,  at  the  expense  of  the  in- 
jured party — the  wrongdoer  at  the  expense  of  him  to  whom 
wrong  has  been  done.  Then,  as  to  the  mariner,  what  is  the 
hardship  to  which  he  is  exposed?  It  is  true,  he  is  debarred 
from  proceeding  against  the  ship,  but  his  right  to  sue  the 
owner  remains  unaffected.  It  is,  however,  not  to  be  for- 
gotten that  in  all  these  cases  of  damage,  or  nearly  all,  the 
cause  of  the  damage  is  the  misconduct  of  some  of  the  per- 
sons composing  the  crew.  This  is  not  the  case  of  a  bank- 
rupt owner.  It  will  be  time  to  consider  such  case  when  it 
arises." 

This  reasoning,  that  the  seaman  has  a  double  remedy 
against  the  owner,  and  that  it  would  be  inequitable  to  al- 
low the  owner,  to  diminish  the  security  of  the  party  injured 
through  his  own  torts  by  allowing  the  seamen  to  be  paid 
out  of  the  vessel,  is  certainly  a  strong  one,  and  receives 
added  strength  in  America  by  the  fact  that  the  act  of  June 
26.   1£84,  allowing  the  vessel  owners  to  plead  their  liinita- 


§  184)  RANK   AS    AFFECTED    BY   DATE    OF   LIENS  391 

tion  of  liability  against  contract  debts,  expressly  reserves 
the  rights  of  seamen ;  and  so  it  would  seem  equitable  that 
a  party  asserting  a  lien  by  tort  should  be  preferred  to  sea- 
men's wages,  though  the  question  cannot  be  considered 
as  settled. 

An  instance  of  such  torts  is  an  unlawful  conversion  by 
the  master.29 


RELATIVE  RANK  AS  AFFECTED  BY  DATE  OF 
VESTING  AMONG  LIENS  OF  SAME 
CHARACTER 

184.  Among  contract  liens  of  the  same  character,  those 
furnished  on  the  last  voyage  rank  those  furnished 
on  a  prior  voyage ;  the  reason  being  that  they  are 
supposed  to  contribute  more  immediately  to  the 
preservation  of  the  res,  and  therefore  are  for  the 
benefit  of  the  prior  liens.30 

In  the  old  days,  when  voyages  were  measured  by  long 
periods  of  time,  this  was  a  just  rule;  but  now,  when  voy- 
ages are  comparatively  short,  it  has  been  found  necessary 
in  the  interest  of  justice  to  introduce  considerable  modifica- 
tions. For  instance,  in  litigation  arising  on  the  Lakes  the 
relative  priorities  are  determined  not  by  the  voyages,  but 
by  the  seasons  of  navigation.  For  several  months  of  the 
year  navigation  there  is  closed  by  ice,  and  the  courts  have 
settled  upon  the  rule  that  claims  furnished  during  one  sea- 
son rank  those  furnished  during  a  previous  season ;  and  this 
rule  is  applied  in  New  York  harbor  also  as  to  boats  which 
operate  by  seasons,  like  canal  boats.31 

2»  Escanaba  (D.  C.)  96  Fed.  252. 

§  184.  30OMER,  2  Hughes,  96,  Fed.  Cas.  No.  10,510;  Porter  v. 
Sea  Witch,  3  Woods,  75,  Fed.  Cas.  No.  11,289 ;  John  T.  Williams  (D. 
C.)  107  Fed.  750 ;    Philomena  (D.  C.)  200  Fed.  873. 

3i  CITY   OF  TAWAS    (D.   C.)   3   Fed.    170;    Arctunis   (D.   C.)    18 


392  RELATIVE    PRIORITIES    OF   MARITIME   UENS         (Ch.  17 

But  in  New  York  harbor  work,  as  to  boats  which  are  be- 
ing used  practically  all  the  year  round,  the  courts  have  set- 
tled upon  the  rule  that  claims  furnished  within  forty  days 
are  preferred  to  those  furnished  prior  to  that  date,  the 
basis  of  the  rule  being  that  it  is  usual  to  sell  on  thirty  days' 
time,  the  ten  days  extra  being  allowed  for  making  demand 
or  proceeding.  As  among  claims  of  the  same  general  char- 
acter within  the  forty  days,  there  is  no  difference  in  rank.32 

In  the  Western  district  of  Washington  a  ninety-day  rule 
has  been  established  as  to  vessels  operating  in  local  har- 
bors and  making  short  trips.33 

In  the  Fourth  circuit,  where  ice  does  not  interrupt  nav- 
igation, the  rule  of  voyages  has  been  applied  when  the  voy- 
ages were  of  any  length;  but  among  harbor  tugs  or  ves- 
sels the  practice  has  been  that  debts  of  the  same  general 
character  are  put  on  the  same  footing  if  they  have  been 
furnished  within  a  year.  The  question  in  that  district  has 
been  considered  mainly  in  reference  to  the  doctrine  of  stale- 
ness.  A  claim  over  a  year  old  is  considered  stale  as  against 
other  admiralty  claims,  and  all  within  a  year  rank  alike.34 

This  rule  of  considering  claims  over  one  year  old  as  stale, 
however,  has  only  been  applied  as  among  marine  claims, 
and  must  not  be  confused  with  the  doctrine  of  staleness  as 
applied  in  relation  to  subsequent  purchasers.  In  such  case, 
claims  have  been  held  stale  as  against  innocent  purchasers 
in  much  less  time  than  a  year.  On  the  other  hand,  the  one- 
year  rule  as  among  maritime  claims  has  frequently  been  re- 
Fed.  743 ;  J.  W.  Tucker  (D.  C.)  20  Fed.  129 ;  Samuel  little,  221  Fed. 
308,  311-312,  137  O.  C.  A.  136. 

3  2  Gratitude  (D.  C.)  42  Fed.  299;  Samuel  Morris  (D.  C.)  63  Fed. 
736;  Samuel  Little,  221  Fed.  30S,  137  C.  C.  A.  136;  Leonard  F. 
Richards  (D.  C.)  231  Fed.  1002.  The  rule  does  not  apply  to  tugs  and 
barges  engaged,  not  in  harbor,  but  in  outside,  work.  In  re  New 
England  Transp.  Co.  (D.  C.)  220  Fed.  203. 

as  Edith  (D.  C.)  217  Fed.  300;    Sea  Foam  (D.  C.)  243  Fed.  929. 

34  Thomas  Morgan  (D.  C.)  123  Fed.  7S1 ;  Steam  Dredge  A,  204 
Fed.  262,  122  C.  C.  A.  527. 


§   185)  RANK   AS   AFFECTED   BY   DATE    OF   LIENS  393 

laxed,  and  the  time  extended,  where  the  vessel  has  been 
absent  from  the  district  for  long-  periods. 


SAME— AMONG   LIENS    OF    DIFFERENT 
CHARACTER 

185.  A  later  service  immediately  contributing  to  the  pres- 
ervation of  the  res  may,  on  that  account,  be  pre- 
ferred to  liens  which  otherwise  would  rank  it. 

The  last  may  sometimes  be  preferred  on  that  account 
though,  if  the  dates  were  the  same,  the  one  so  preferred 
would  be  an  inferior  claim.  For  instance,  in  the  FORT 
WAYNE,35  a  claim  for  repairs  to  the  vessel  rendered  when 
salvors  had  taken  charge  of  her  after  a  disaster  (the  re- 
pairs being  of  a  character  almost  necessary  to  enable  her  to 
reach  port)  was  preferred  to  prior  wages,  and  was  made  to 
rank  next  to  the  salvage.    On  this  point  the  court  says : 

"I  can  have  no  hesitation,  therefore,  in  holding  that  the 
claim  of  the  Eureka  Insurance  Company  is  established  by 
the  evidence,  and  is  a  lien  on  the  boat,  ranking  in  privilege 
next  to  the  salvage  claim  of  the  Missouri  Wrecking  Com- 
pany. This  lien  rests  on  the  footing  of  money  loaned  or 
advanced  for  repairs  to  the  boat,  without  which  it  would 
have  been  of  little  value,  and  could  not  possibly  have  pros- 
ecuted its  business.  The  money  so  advanced  and  applied 
may  be  supposed,  therefore,  to  have  inured  to  the  benefit 
of  prior  lienholders.  And,  according  to  the  doctrine  dis- 
tinctly asserted  by  Dr.  Lushington  in  the  case  of  the  Aline, 
1  W.  Rob.  Adm.  119,  120,  the  persons  making  such  advances 
have  a  priority,  to  the  extent  of  the  repairs  made,  over  all 
other  lienholders.  But  the  case  before  me  does  not  call 
for  a  more  extended  exposition  of  this  principle." 

§  185.     35  1   Bond,  476,   Fed.   Cas.   No.  3,012.     See,   also,   Veritas, 
[1901]  P.  304 ;    Sea  Spray,  [1907]  P.  133. 


I 

394  RELATIVE   PRIORITIES   OF   MARITIME    LIENS        (Ch.  17 

For  similar  reasons  a  materialman's  claim  has  been  pre- 
ferred to  a  prior  towage  claim.36 

SAME— BETWEEN  CONTRACT  AND  TORT  LIENS 

186.  On  this  account  a  later  contract  lien  may  rank  a  prior 

tort  lien. 

An  interesting  illustration  of  this  was  the  Jeremiah.37 
There  salvors  rescued  a  vessel  which  had  been  in  collision, 
and  was  so  hung  to  the  other  vessel  that  it  required  some 
force  to  get  them  apart.  The  court  held,  that  the  salvage 
claim  had  priority  over  the  collision  claim. 

So,  too,  in  the  ALINE,38  Dr.  Lushington,  while  prefer- 
ring, as  we  have  heretofore  seen,  the  tort  claims  to  a  prior 
bottomry  bond,  held  also  that  a  bottomry  bond  for  supplies 
subsequently  furnished  ranked  the  tort  claim,  for  the  rea- 
son that  the  tort  claim  could  only  go  against  the  vessel  as 
it  was  at  the  time  of  the  collision,  and  had  no  right  to  sub- 
ject a  subsequent  increment  to  the  vessel  like  this. 

SAME—AS   BETWEEN   TORT   LIENS 

187.  Among  tort  liens,  the  last  should  rank;  but  this  is  not 

settled. 

An  interesting  case  on  this  subject  was  the  FRANK  G. 
FOWLER.39  In  that  case  there  were  two  successive  col- 
lisions so  close  together  that  no  question  of  laches  could 
arise  between  the  two.  Under  such  circumstances  District 
Judge  Choate  held  that  the  last  was  entitled  to  priority,  as 

sc  Dan  Brown,  9  Bon.  309,  Fed.  Cas.  No.  3,556. 
|  186.     st  io  Bon.  338,  Fed.  Cas.  No.  7,290.     So  as  to  subsequent 
Hens  for  necessaries.     Glen  Island  (D.  C.)  191  Fed.  74  L 
-  1.  w.  Rob.  Ad.  112. 
§  187.     a»  (D.  C.)  8  Fed.  331;    Td.  (C.  C.)  17  Fed.  053. 


§  187)  RAXK   AS   AFFECTED    BY   DATE    OF   LIENS  305 

the  first  collision  claim  had  a  jus  in  re,  or  a  proprietary  inter- 
est, in  the  vessel,  and  therefore  was  somewhat  in  the  posi- 
tion of  an  owner.     In  his  opinion  he  says: 

"A  party  who  has  already  suffered  such  a  damage  has 
such  a  lien  or  hypothecation  of  the  vessel.  He  is  to  that 
extent  in  the  position  of  an  owner — he  has  a  quasi  propri- 
etary interest  in  the  vessel.  It  is  true,  he  cannot,  as  an  own- 
er, control  her  employment,  or  prevent  her  departure  on  an- 
other voyage,  except  by  the  exercise  of  his  right  or  power 
to  arrest  her  for  the  injury  to  himself;  and  in  some  cases 
the  second  injury  may  be  done  before  he  has  an  opportunity 
to  arrest  her.  Yet,  if  her  continued  employment  is  not  his 
own  voluntary  act,  nor  with  his  own  consent,  it  is  his  mis- 
fortune that  the  vessel  in  which  he  has  an  interest  is  used 
in  a  manner  to  subject  herself  to  all  the  perils  of  naviga- 
tion. This  use,  unless  he  intervenes  to  libel  and  arrest  her, 
is  perfectly  lawful  as  against  him.  If  she  is  lost  by  ship- 
wreck, of  course  his  lien  becomes  valueless,  and  I  think  his 
interest  is  not  exempted  from  this  other  peril  to  which  the 
vessel  is  liable,  namely,  that  she  may  become  bound  to 
any  party  injured  through  the  torts  of  the  master  and 
mariners.  The  principle  as  to  marine  torts  is  that  the  ship 
is  regarded  as  the  offending  party.  She  is  liable  in  solido 
for  the  wrong  done.  The  interests  of  all  parties  in  her  arc 
equally  bound  by  this  lien  or  hypothecation,  whether  the 
master  and  mariners  are  their  agents  or  not.  In  the  case 
of  the  Aline,  1  W.  Rob.  Adm.  118,  Dr.  Lushington  says: 
'I  am  also  of  opinion  that  neither  the  mortgagee  nor  bot- 
tomry bondholder  could  be  a  competitor  with  the  suc- 
cessful suitor  in  a  cause  of  damage,  and  for  this  reason  that 
the  mortgage  or  bottomry  bond  might,  and  often  does,  ex- 
tend to  the  whole  value  of  the  ship.  If,  therefore,  the  ship 
was  not  first  liable  for  the  damage  she  had  occasioned,  the 
person  receiving  the  injury  might  be  wholly  without  a  rem- 
edy ;  more  especially  where,  as  in  this  case,  the  damage  is 
done  by  a  foreigner,  and  the  only  redress  is  by  a  proceed- 


396  RELATIVE    PRIORITIES    OF   MARITIME    LIENS        (Ch.  17 

ing  against  the  ship.'  Commenting  on  this  decision  in  the 
case  of  the  Bold  Buccleugh,  ut  supra,  the  court  says:  'In 
that  case  there  was  a  bottomry  bond  before  and  after  the 
collision,  and  the  court  held  that  the  claim  for  damage  in  a 
proceeding  in  rem  must  be  preferred  to  the  first  bondholder, 
but  was  not  entitled,  against  the  second  bondholder,  to  the 
increased  value  of  the  vessel  by  reason  of  repairs  effected  at 
his  cost.  The  interest  of  the  first  bondholder  taking  effect 
from  the  period  when  his  lien  attached,  he  was,  so  to  speak, 
a  part  owner  in  interest  at  the  date  of  the  collision,  and 
the  ship  in  which  he  or  others  were  interested  was  liable 
to  its  value  at  that  date  for  the  injury  done,  without  ref- 
erence to  his  claim.'  I  think  the  same  principle  is  applica- 
ble to  a  prior  lienholder,  who,  by  the  tort  of  the  master  and 
mariners,  had  become,  so  to  speak,  a  part  owner  in  the  ves- 
sel. His  property — the  vessel — though  not  by  his  own  vol- 
untary act,  has  been  used  in  commerce.  That  use  was  not 
tortious  as  to  him.  It  is  subject  in  that  use  to  all  ordinary 
marine  perils.  One  of  those  marine  perils  is  that  it  may 
become  liable  to  respond  to  another  party  injured  by  the 
negligence  of  the  master  and  mariners.  No  exception  to  the 
liability  of  the  vessel,  exempting  the  interests  of  parties 
interested  in  the  ship,  has  been  established  by  authority." 

On  appeal  to  Circuit  Judge  Blatchford  this  decision  was 
reversed,  the  judge  holding  that  the  doctrine  of  the  last  be- 
ing paid  first  only  applied  to  such  liens  as  were  for  the  ben- 
efit of  the  vessel,  and  tend  to  the  preservation  of  the  res, 
and  did  not  apply  to  torts,  which  tend  rather  to  destroy 
than  to  benefit. 

If  the  principles  laid  down  by  the  Supreme  Court  in  the 
JOHN  G.  STEVENS  are  the  guide,  the  District  Judge  was 
the  one  who  should  be  followed.  When  we  once  settle  the 
doctrine  that  a  maritime  lien  is  a  jus  in  re,  or  a  proprietary 
interest  in  the  ship,  it  follows  necessarily  that  the  owner  of 
that  interest,  though  not  guilty  of  laches,  and  having  no 
control  over  the  master  in  charge,  impliedly  takes  the  risks 


§  188)  RANK  AS  AFFECTED   BY  SUIT   OR  DECREE  397 

of  subsequent  accidents,  and  holds  the  ship  out  to  the  world 
as  a  thing  of  life,  liable  to  make  contracts  and  to  commit 
torts,  and  that  he  should  not  be  heard  to  dispute  the  claims 
of  others  who  have  been  brought  into  relations  with  her 
upon  this  basis.40 

RELATIVE  RANK  AS  AFFECTED  BY  SUIT  OR 
DECREE 

188.  The  earlier  decisions  held  that  among  claims  of  other- 
wise equal  dignity  the  party  first  libeling  was  en- 
titled to  be  first  paid,  on  the  theory  that  an  admi- 
ralty lien  was  a  mere  right  of  arrest;  but  the  later 
decisions,  establishing  it  as  a  proprietary  right 
or  interest  in  the  thing  itself,  have  deduced  from 
that  principle  that  a  prior  petens  has  no  advan- 
tage, and  that  the  institution  of  suit  does  not  af- 
fect the  relative  rank  of  liens.41 

In  fact,  in  many  districts,  obtaining  a  decree  does  not  give 
an  inferior  claim  a  priority  which  it  would  not  otherwise 
have,  but  merely  entitles  the  claimant  to  assert  his  claim 
without  further  proof,  and  debars  others  from  contesting  it 
on  its  merits,  leaving  open  simply  the  question  of  priority.42 

In  England  a  lienor  who  secures  an  admiralty  decree 
for  his  claim  is  held  to  have  obtained  the  highest  rank  that 
the  lav/  can  give,  and  to  be  entitled  to  priority  over  all 
others.43 

This  is  a  question  largely  affected  by  local  practice  and 
local  rules.     In  many  districts  independent  libels  are  filed 

40  America  (D.  C.)  168  Fed.  424. 

§  188.     4i  CITY  OF  TAWAS   (D.   C.)  3   Fed.  170;    J.  W.  Tucker 
(D.  C.)  20  Fed.  129 ;    Saylor  v.  Taylor,  77  Fed.  476,  23  C.  C.  A.  343. 
,42  CITY  OF  TAWAS  (D.  C.)  3  Fed.  170;    Aina  (D.  C.)  40  Fed.  269. 

43  Abbott's  Law  of  Merchant  Ships,  pt.  6,  c.  4,  §  2 ;  Bernard  v. 
Hyne,  6  Moore,  P.  C.  56;  4  Notes  of  Cases,  49S;  2  W.  Rob.  451; 
13  Eng.  Rep.  604. 


398  RELATIVE    PRIORITIES   OF   MARITIME   LIENS         (Ch.  17 

against  the  vessel.  In  some  the  vessel  is  arrested  under 
the  first  libel,  and  the  others  come  in  by  petition.  In  some 
districts,  after  a  certain  time  all  the  claims  are  referred  to  a 
commissioner,  to  ascertain  and  report  their  relative  rank. 
In  others,  in  the  event  of  no  contest,  a  decree  is  entered  at 
the  return  day,  or  as  soon  thereafter  as  possible,  giving  pe- 
titioners a  judgment  against  the  vessel,  and  directing  a 
sale.     It  is  impossible  to  lay  down  any  rule  on  the  subject. 

In  the  Eastern  district  of  Virginia  the  practice  is  that  all 
claims  filed  up  to  the  answer  day  are  paid  according  to 
their  relative  character,  it  matters  not  which  libels  first. 
But  all  claims  after  the  answer  day,  though  otherwise  prior 
in  dignity,  come  in  subject  to  those  already  filed.  In  that 
district  the  rule  has  been  that  claims  coming  in  after  a  de- 
cree has  been  entered,  and  an  order  of  sale  made,  are  sub- 
ject to  the  others,  the  reason  being  that  the  rules  of  that 
district  allow  nearly  three  weeks  between  the  libel  day  and 
the  answer  day,  which  therefore  give  ample  time  for  com- 
ing in,  and  it  being  further  thought  that  bidders  at  the 
sale  ought  to  know  their  relative  rights  in  order  to  enable 
them  to  decide  upon  their  bids.  Those  creditors  who 
stay  out  until  others  more  diligent  than  themselves  bring 
suit,  secure  a  sale,  attend  the  sale,  and  make  the  vessel  bring 
a  good  price,  are  not  permitted  to  intervene  then,  and  dis- 
place those  who  have  borne  the  heat  and  burden  of  the 
fray. 

In  the  absence  of  special  equities,  the  rule  of  practice  in 
the  Eastern  district  of  Virginia  would  certainly  seem  a  fair 
one,  well  calculated  to  make  vessels  bring  their  full  value, 
and  to  make  marine  claimants  assert  their  claims  season- 
ably, without  allowing  them  to  prejudice  the  rights  of  oth- 
ers.44 

**  See,  also,  Saracen,  2  W.  Rob.  Ad.  453;  Bradley  v.  Corn  Ex- 
change, Inland  Navigation  &  Fire  Ins.  Co.,  5  Wall.  87,  LS  L.  Ed.  517; 
Dode  (D.  C.)  100  Fed.   178;   James  <i.  Swan  (D.  C.)  106  Fed.  94. 


§   189)  SUMMARY   OF   PLEADING   AND   PRACTICE  399 

CHAPTER  XVIII 
A  SUMMARY  OF  PLEADING  AND  PRACTICE 

189.  Simplicity  of  Admiralty  Procedure. 

190.  Proceedings  in  Rem  and  in  Personam. 

191.  The  Admiralty  Rules  of  Practice. 

192.  The  Libel. 

193.  Amendments. 
191.  The  Process. 

195.  Decrees  by  Default. 

196.  The  Defense. 

197.  The  Trial. 

198.  Evidence. 

199.  Attachments  in  Admiralty. 

200.  Set-Off. 

201.  Limitations. 

202.  Tender. 

203.  Costs. 

204.  Enforcing  Decrees. 

205.  The  Fifty-Ninth  Rule. 

200.  The  Courts  having  Admiralty  Jurisdiction. 

207.  The  Process  of  Appeal. 

20S.  Questions  of  Fact  on  Appeal. 

209.  New  Evidence. 

SIMPLICITY  OF  ADMIRALTY  PROCEDURE 

189.  Admiralty  procedure  is  like  chancery  pleading  in  sim- 
plicity and  flexibility. 

Admiralty  pleading  and  practice  are  simple;  more  so 
even  than  proceedings  in  chancery,  though  governed  large- 
ly by  the  liberal  principles  which  prevail  in  that  forum.1 

§  1S9.  i  Richmond  v.  New  Bedford  Copper  Co.,  2  Low.  315.  Fed. 
Cas.  No.  11,800;  Toledo  S.  S.  Co.  v.  Zenith  Transp.  Co.,  1S1  Fed. 
301.  10<J  C.  C.  A.  501 :  U.  S.  v.  Cornell  Steamboat  Co.,  202  U.  S.  1S4. 
liG  Sup.  Ct.  64S,  50  L.  Ed.  9S7. 


400  SUMMARY  OF   PLEADING  AND  PRACTICE  (Ch.  18 

By  this  it  is  not  meant  that  an  admiralty  court  has  any 
chancery  jurisdiction.  It  has  no  jurisdiction,  for  instance, 
of  matters  of  account,  except  incidentally,  where  an  account 
is  necessarily  involved  in  exercising  jurisdiction  conferred 
on  some  other  ground.2 

Nor  has  it  jurisdiction  of  controversies  arising  from  titles 
merely  equitable.3 

190.  PROCEEDINGS  IN  REM  AND  IN  PERSONAM 

Admiralty  proceedings  fall  under  two  great  classes — pro- 
ceedings in  rem  and  proceedings  in  personam.  In  the  first, 
the  thing  itself  against  which  the  right  is  claimed  or  lia- 
bility asserted  is  proceeded  against  by  name,  as  a  contract- 
ing or  offending  entity,  arrested  or  taken  into  legal  cus- 
tody, and  finally  sold  to  answer  the  demand,  unless  its 
owner  appears  and  releases  it  by  bond  or  stipulation. 

A  proceeding  in  personam  is  an  ordinary  suit  in  admiral- 
ty against  an  individual.  The  process  upon  it  is  a  moni- 
tion, which  substantially  corresponds  to  an  ordinary  sum- 
mons in  a  common-law  suit,  or  it  may  be  accompanied  in 
proper  cases  by  a  process  of  foreign  attachment,  or  it  may 
also  have  a  warrant  of  arrest  of  the  person  in  cases  where 
the  state  law  permits  an  arrest.* 

The  distinction  between  a  proceeding  against  the  res  it- 
self to  enforce  its  own  obligation  and  a  proceeding  against 
the  owner  to  enforce  his  own  obligation,  whether  connected 
with  the  res  or  not,  and  whether  accompanied  by  an  attach- 
ment as  incidental  to  the  owner's  liability  or  not  is  vital.'5 

Whether  to  proceed  in  rem  or  in  personam  in  a  given  case 

2  Grant  v.  Portion,  20  How.  1G2,  15  L.  Ed.  S71 ;  II.  E.  Willard  (C. 
C.)  52  Fed.  387. 

3  ECLIPSE,  135  U.  S.  509,  10  Sup.  Ct.  S73,  34  L.  Ed.  2G9. 

§  190.  *  Admiralty  rule  4S  (29  Sup.  Ct.  xliv) ;  Atkins  v.  Fiber  Dis- 
integrating Co.,  18  Wall.  272,  21  L.  Ed.  841. 

b  Knapp  Stout  &  Co.  Co.  v.  McCaffrey,  177  U.  S.  038,  20  Sup.  Ct.  825, 
44  L.  Ed.  921. 


§  190)     PROCEEDINGS  IN  REM  AND  IN  PERSONAM       401 

is  rather  a  question  of  substantive  law  than  of  practice.  It 
depends  on  the  question  whether  there  is  an  admiralty  lien, 
and  the  discussion  under  the  previous  subjects  of  these  lec- 
tures must  be  adverted  to  in  order  to  decide  it.  Admiralty- 
rules  12-20  contain  provisions  when  the  suit  may  be  in  rem, 
when  in  personam,  and  when  in  both.  But  they  are  not  in- 
tended to  be  exclusive,  or  to  say  that  in  cases  not  covered 
by  their  terms  there  shall  be  no  remedy,  whether  in  either 
form  or  in  both  combined.6 

"Proceedings  in  Rem  Bind  the  World" 

It  is  a  maxim  of  the  law  that  proceedings  in  rem  bind 
the  world.  In  such  proceedings  no  notice  is  served  on  the 
owner.  It  is  presumed  that  a  seizure  of  his  property  will 
soon  come  to  his  knowledge,  and  cause  him  to  take  steps 
to  defend  it;  and  when  he  appears  for  that  purpose  he 
comes  in  rather  as  claimant  or  intervenor  than  as  defendant. 
Hence,  if  he  does  not  appear,  the  judgment  binds  only  the 
property  seized,  and,  if  it  does  not  satisfy  the  claim,  no 
personal  judgment  can  be  given  against  him  for  the  defi- 
ciency. In  ordinary  suits  of  foreign  attachment  in  the  state 
courts,  the  debtor  is  defendant  by  name,  and,  if  he  appears, 
a  personal  judgment  may  be  rendered  against  him ;  but 
not  so  in  admiralty  suits  in  rem,  for  the  real  defendant  there 
is  the  vessel  or  other  property,  and  the  owner  appears  not 
as  defendant,  but  as  claimant.7 

It  follows  from  this  principle  that  when  an  owner  comes 
in  for  the  purpose  of  protecting  his  interest  in  the  res,  he 
does  not  submit  himself  generally  to  the  jurisdiction  of 
the  court  so  as  to  permit  a  judgment  in  personam  against 
him  for  any  deficit.     This  springs  logically  from  the  doc- 

e  CORSAIR,  145  U.  S.  335,  12  Sup.  Ct.  949,  36  L.  Ed.  727 ;  Thomas 
P.  Sheldon  (D.  C.)  113  Fed.  779;    Samson  (D.  C.)  197  Fed.  1017. 

7  Cooper  v.  Reynolds,  10  Wall.  30S,  19  L.  Ed.  931 ;  O'Brien  v. 
Stephens,  11  Grat.  (Va.)  610;  Davis,  10  Wall.  15,  19  L.  Ed.  875; 
Pleroma  (D.  C.)  175  Fed.  639. 

Htjghes,Adm.(2d  Ed.) — 26 


402  SUMMARY   OP   PLEADING   AND  PRACTICE  (Ch.  18 

trine  applied  in  America  that  the  res  is  the  real  contractor 
or  offender,  and  that  the  owner's  interest  is  incidental.8 

Herein  is  a  sharp  distinction  between  the  American  and 
English  law.  In  England  a  respondent  is  really  a  defend- 
ant, and  judgment  goes  against  him  for  any  deficiency.9 

This  was  because  the  procedure  in  rem  in  England  was 
in  its  origin  not  based  on  any  theory  of  direct  responsibility 
attaching  to  the  res,  but  as  a  means  of  compelling  the  own- 
er's appearance.  Their  process  to  this  day,  though  nam- 
ing the  ship  and  not  the  owners  in  terms,  commands  them 
to  enter  an  appearance,  and  the  arrest  of  the  ship  follows  as 
an  incident.10 

When  the  maxim  says  that  a  proceeding  in  rem  binds 
the  world,  it  means  that  all  having  any  interest  in  the  res 
have  constructive  notice  of  its  seizure,  and  must  appear  and 
protect  their  interest.  Hence,  as  every  obligation  implies 
a  correlative  right,  no  one  is  bound  to  appear  whose  inter- 
est is  of  a  character  which  does  not  permit  him  to  appear; 
and  such  are  not  bound  by  the  proceeding,  except  in  so  far 

s  Monte  A.  (D.  C.)  12  Fed.  331;  Ethel,  66  Fed.  340.  13  C.  C.  A. 
."04;  Lowlands  (D.  C.)  147  Fed.  9S6;  Nora  (D.  C.)  181  Fed.  845. 
In  the  Minnetonka,  146  Fed.  509,  515,  77  C.  C.  A.  217,  is  a  holding 
that  a  personal  decree  can  be  rendered  against  the  claimant.  It 
was  a  suit  which  might  have  been  brought  originally  in  rem  and  in 
personam,  though  it  was  apparently  in  rem.  Hence  an  amendment 
adding  the  proceeding  in  personam  and  directing  the  issue  of  now- 
process  thereon  would  have  been  clearly  allowable.  But  how  this 
could  have  been  done  without  such  au  amendment,  or  how  it  can 
be  done  in  cases  where  the  procedure  could  not  have  been  in  rem 
and  in  personam  at  the  outset,  is  l>eyond  the  author's  comprehen- 
sion.   CORSAIR.  145  U.  S.  335,  12  Sup,  Ct.  049,  36  L.  Ed.  727. 

a  Gemma,  [1899]   P.  285:    Dupleix,   [1912]  P.  8. 

io2  Select  Anglo-American  Legal  Essays  (Mears'  Essay)  315.  In 
.Mayer's  Admiralty  Law  &  Practice,  0  el  seq.,  and  also  26  et  seq.,  is 
a  thorough  discussion  of  the  difference  between  the  English  and 
American  doctrine,  and  the  reason  'herefor.  In  the  appendix  to 
Smith's  Admiralty  Law  and  Practice  is  a  full  collection  of  the 
English  forms. 


§  192)  THE   LIBEL  403 

as  they  may  be  bound  through  their  vendors  or  other  par- 
ties in  privity.11 

191.  THE  ADMIRALTY  RULES  OF  PRACTICE 

In  1842  Congress  passed  an  act  directing  the  Supreme 
Court  to  prepare  and  promulgate  rules  to  govern  the  proce- 
dure and  practice  in  admiralty.  In  pursuance  of  this  stat- 
ute, the  court  promulgated  the  rules  to  regulate  the  ad- 
miralty practice  in  the  inferior  courts  now  known  and  cited 
as  the  "Admiralty  Rules."  They  form  an  admirably  simple 
and  harmonious  system,  and  have  worked  so  well  that  they 
are  to-day  practically  in  the  form  of  the  original  draft,  the 
only  material  change  being  the  addition  of  a  few  to  regulate 
limited  liability  proceedings,  and  one  to  authorize  bringing 
in  the  other  vessel  where  only  one  of  two  colliding  vessels 
is   libeled. 

An  admiralty  court  is  not  a  court  of  terms,  but  is  always 
open  for  the  transaction  of  business. 

192.  THE  LIBEL 

The  first  step  in  an  admiralty  suit  is  to  file  the  libel.  This 
is  the  written  statement  of  the  cause  of  action,  correspond- 
ing to  the  declaration  at  common  law  and  the  bill  in  equity. 
It  must  be  properly  entitled  of  the  court;  addressed  to  the 
judge;  must  state  the  nature  of  the  cause;  that  the  prop- 
ertv  is  within  the  district,  if  in  rem,  or  the  parties,  their 
occupation  and  residence,  if  in  personam ;  must  then  state 
the  facts  of  the  special  case  in  separate  articles  clearly  and 
concisely,  and  conclude  with  a  prayer  for  process  and  a 
prayer  for  general  relief.  It  may  propound  interrogatories 
to  the  adversary.12 

ii  ECLIPSE,  135  U.  S.  599,  10  Sup.  Ct.  S73,  34  L.  Ed.  269;    Cush- 
ing  v.  Laird,  107  D.  S.  69,  2  Sup.  Ct.  196,  27  L.  Ed.  391. 
§   L92.     12  Admiralty  rule  23  (29  Sup.  Ct.  xli). 


404        SUMMARY  OF  PLEADING  AND  PRACTICE     (Ch.  18 

The  libel  should  be  in  the  name  of  the  real  party  in  in- 
terest, not  in  the  name  of  one  for  the  benefit  of  another. 
But  the  better  opinion  is  that  it  may  be  amended  by  insert- 
ing the  names  of  the  real  parties,  or  that,  if  they  come  in 
by  supplemental  libel,  the  proceedings  will  thereby  be  made 
regular.18 

This  principle  does  not  prevent  suits  in  a  representative 
capacity.  For  instance,  the  master  has  wide  powers  as 
agent  of  all  concerned,  and  may  sue  on  behalf  of  owners 
of  ship  and  cargo,  and  frequently  on  behalf  of  the  crew.14 

All  parties  entitled  to  similar  relief  on  the  same  state  of 
facts  may  join  as  libelants,  in  order  to  avoid  multiplicity  of 
suits.  And  for  the  same  reason  distinct  causes  of  action 
may  be  joined  in  one  libel.  The  practice  in  this  respect 
is  very  liberal.15 

In  stating  the  facts  of  the  special  case,  useless  verbiage 
and  archaic  terms,  may  safely  be  omitted.  The  narration 
may  be  made  as  simple  as  possible,  provided,  always,  that 
those  essentials  common  to  any  civilized  system  of  pleading 
be  observed — to  state  the  case  with  sufficient  detail  to  noti- 
fy the  adversary  of  the  grounds  of  attack,  so  that  he  may 
concert  his  defense.  For  instance,  a  libel  in  a  collision  case 
must  specify  the  acts  of  negligence  committed  by  the  other 
vessel,  though,  if  it  does  not  do  so,  but  merely  charges  neg- 


13  Ilos,  Swab.  100;  Minna,  D.  R.  2  Ad.  &  Ec.  97;  Fretz  v.  Bull, 
12  How.  466,  13  L.  Ed.  1068;  Burke  v.  M.  P.  Rich,  Fed.  Cas.  No. 
2,161;  Anchoria  (D.  C.)  9  Fed.  S40;  Beaconsfield,  158  U.  S.  303,  15 
Sup.  Ct.  800,  39  L.  Ed.  993 ;  Eastfield  S.  S.  Co.  v.  McKeon  (D.  C.) 
186  Fed.  357  (reversed  on  another  point  201  Fed.  465,  120  C.  C.  A. 
249;  the  court  however  stating — page  470 — that  it  concurred  with 
the  District  Court  on  this  point). 

1*  Commander  in  Chief,  1  Wall.  51,  17  L.  Ed.  609;  Blackwall,  10 
Wall.  1,  19  L.  Ed.  870 ;    Mercedes  (D.  C.)  108  Fed.  559. 

is  Queen  of  the  Pacific  (D.  C.)  61  Fed.  213;  Pacific  Coast  S.  S. 
Co.  v.  Bancroft-Whitney  Co.,  94  Fed.  ISO,  36  C.  C.  A.  135,  reversed 
Queen  of  the  Pacific,  180  U.  S.  49,  21  Sup.  Ct.  27S,  45  L.  Ed.  419, 
but  not  on  this  question ;    Oregon,  133  Fed.  609,  68  C.  C.  A.  603. 


§  193)  AMENDMENTS  405 

ligence  in  general,  and  no  exceptions  are  filed,  it  will  not 
prevent  the  case  from  proceeding.18 


193.  AMENDMENTS 

In  case  the  libel  is  thought  defective,  great  latitude  is  al- 
lowed in  amendments.  Formal  amendments  are  a  matter 
of  course,  and  amendments  in  matters  of  substance  are  in 
the  discretion  of  the  court.  They  may  be  made  even  on 
appeal,  but  not  to  the  extent  of  introducing  a  new  subject 
of  litigation.17 

But  the  power  of  the  court  to  allow  amendments  is  a 
judicial  discretion,  not  a  mere  caprice.  It  will  not  be  so 
exercised  as,  under  the  guise  of  liberality  to  one  party,  to 
do  injustice  to  the  other.  Hence,  after  the  cause  is  at  issue, 
and  evidence  has  been  taken,  or  the  witnesses  scattered,  a 
court  would  be  chary  in  allowing  amendments,  especially 
of  matters  known  to  the  applicant  for  any  length  of  time 
before  the  application  is  made. 

"The  propriety  of  granting  this  privilege  in  any  partic- 
ular case  will  depend  on  the  circumstances  by  which  it  is 
attended.  The  application  is  addressed  to  the  sound  discre- 
tion of  the  court,  and  this  discretion  is  to  be  exercised  with 
a  just  regard  to  the  rights  and  interests  of  both  parties ; 
care  being  taken  that  for  the  sake  of  relieving  one  party 
injustice  shall  not  be  done  to  the  other."  18 

is  MARPESIA,  L.  R.  4  P.  C.  212;  Vim  (D.  C.)  2  Fed.  874;  II.  P. 
Baldwin,  2  Abb.  U.  S.  257,  Fed.  Cas.  No.  6,S11 ;  Barber  v.  Lockwood 
<D.  C.)  134  Fed.  9S5. 

§  193.  17  Admiralty  rule  24  (29  Sup.  Ct.  xli) ;  Grabam  v.  Oregon 
R.  &  Nav.  Co.  (D.  C.)  134  Fed.  092;  Indiana  Transp.  Co.,  Ex  parte, 
244  U.  S.  456,  37  Sup.  Ct.  717,  61  L.  Ed.  1253  (a  case  growing  out  of 
the  Eastland  disaster,  and  emphasizing  the  principle  that  an  ap- 
pearance to  defend  does  not  constitute  a  submission  to  jurisdiction 
for  all  purposes). 

is  2  Conk.  Adm.  258.  As  examples  of  the  limit  put  upon  this  pow- 
«i  of  amendments,  see  Keystone  (D.  C.)  31  Fed.  at  page  416 ;   Thorn- 


40G        SUMMARY  OF  PLEADING  AND  PRACTICE     (Ch.  18 


194.  THE  PROCESS 

On  filing  the  libel  in  rem  an  order  lor  process  is  filed.  It 
recites,  "On  reading-  the  libel,  and  otherwise  complying 
with  the  rules  of  court,  let  process  issue." 

Thereupon  the  process  of  arrest  issues.  It  is  directed  to 
the  marshal,  and  instructs  him  to  seize  the  vessel,  and  give 
notice  to  all  interested  that  on  a  certain  day,  fixed  by  the 
rules  of  each  district,  the  case  will  come  on  for  hearing, 
when  and  where  they  are  cited  to  appear,  and  interpose 
their  claims,  and  to  return  his  action  thereunder  to  the 
court. 

"Arrest"'  is  nothing  more  than  the  term  applied  in  ad- 
miralty parlance  to  a  seizure  of  the  res.19 

The  time  fixed  for  hearing  and  set  out  in  the  warrant  of 
arrest  varies  with  the  rules  in  different  districts.  It  is  usu- 
allv  about  two  weeks  off,  for  the  merit  of  admiralty  pro- 
ceedings is  their  rapidity. 

In  the  Eastern  district  of  Virginia  the  return  day  is  Tues- 
day  of  the  week  next  after  filing  the  libel,  and  the  hearing 
day  is  ten  days  after  that,  which  makes  it  always  fall  on 
Friday. 

The  warrant  of  arrest  is  signed  by  the  clerk,  and  under 
the  court  seal.  The  marshal,  on  receiving  it,  makes  out 
three  notices,  signed  by  himself,  reciting  that  by  virtue  of 
the  warrant  he  has  seized  the  said  vessel,  and  has  her  in 
his  custody,  and  that  all  persons  are  cited  to  appear  on  the 
hearing  day,  and  show  cause  why  a  final  decree  should  not 
pass  as  prayed.  He  takes  the  warrant  of  arrest  and  one  of 
these  proclamations,  and  starts  out  on  a  quest  for  his  prey. 

as  Melville  (D.  C.)  31  Fed.  48G;  McKinlay  v.  Morrish,  21  How.  347, 
16  L.  Ed.  100:  Lamb  v.  Parkman,  1  Spr.  343,  Fed.  Cas.  No.  8,020; 
Coffin  v.  Jenkins.  3  Story,  108,  Fed.  Cas.  No.  2,948;  Philadelphian,  60 
Fed.  123,  0  C.  C.  A.  54;  O'Brien  v.  Miller.  168  CJ.  S.  287,  is  Sun.  Ct. 
140,  42  L.  Ed.  469;  Circassian,  2  Ben.  171,  Fed.  Cas.  No.  2,723. 
194.     m  Pelharo  v.  Hose,  9  Wall.  103,  19  L.  Ed.  002. 


§  194)  THE   PROCESS  *07 

On  finding  her,  he  reads  the  warrant  of  arrest  to  the  cap- 
tain or  other  person  in  charge,  and  he  pastes  a  copy  of  his 
proclamation  on  a  conspicuous  part  of  the  vessel.  Then 
he  returns  to  the  court-room  door,  and  pastes  another  there. 
And  then,  by  way  of  making  it  more  widely  known,  he  goes 
to  the  newspaper  designated  by  court  rule,  and  publishes  a 
notice  in  substantially  the  same  form.  Meanwhile  a  ship 
keeper  is  in  charge  of  the  ship. 

The  marshal  cannot  serve  process  upon  a  ship  in  custody 
of  an  officer  of  a  state  court.  Such  an  officer  cannot  sell 
the  title  clear  of  maritime  liens,  and  so  the  admiralty  claim- 
ant must  wait  till  the  other  court  lets  go.  As  soon  as  its 
custody  ends,  the  admiralty  claimant  may  proceed  against 
it,  even  in  the  hands  of  the  state  court  purchaser.2" 

A  vessel  owned  or  in  use  by  a  Government  is  not  subject 
to  process.21 

If  the  vessel  owner  wants  possession  of  his  ship,  he  is  al- 
lowed., by  section  941,  Rev.  St.  (U.  S.  Comp.  St.  §  1567), 
to  come  in,  give  bond  or  stipulation  in  double  the  amount 
of  libelant's  claim,  and  release  her.  This  is  a  substitute  for 
the  vessel,  and  no  suit  is  necessary  upon  it,  but  judgment 
may  be  given  against  the  obligors  on  it  in  the  final  decree.22 

This  bond  or  stipulation  is  so  far  a  substitute  for  the 
vessel  that  it  discharges  the  claim  against  her  which  is  be- 
ing asserted  in  the  libel,  and  she  cannot  be  re-arrested  for 
the  same  cause  of  action,  unless  there  have  been  circum- 
stances of  fraud  or  misrepresentation  in  giving  it,  or  unless 

20  TAYLOR  v.  CARRYL,  20  How.  583,  15  L.  Ed.  102S ;  Moran 
v.  Sturges,  154  IT.  S.  250,  14  Sup.  Ct.  1019.  38  L.  Ed  9S1 ;  Resolute, 
168  U.  S.  437,  IS  Sup.  Ct.  112,  42  L.  Ed.  533. 

21  Siren.  7  Wall.  152.  19  L.  Ed.  129:  G.  A.  Flagg  (D.  C.)  256  Fed. 
852:  Broadmayne,  [1916]  P.  64;  32  T.  L.  R.  304;  Porto  Alexandre, 
36  T.  L.  R.  28,  66.  Since  the  test  was  written  Congress  has  passed 
The  act  of  March  9,  1920.  authorizing  suits  against  the  United  States. 
The  act  will  be  found  in  the  Appendix,  p.  506. 

22  See  post,  p.  497. 


408  SUMMARY   OF   PLEADING  AND  PRACTICE  (Ch.  18 

it  was  a  case  in  which  such  an  undertaking  could  not  legal- 
ly be  given.23 

On  the  theory  that  a  bona  fide  effort  to  assert  one's  rights 
should  not  involve  any  unpleasant  aftermath,  a  libelant  who 
fails  in  his  suit  is  not  liable  for  his  unsuccessful  arrest  of 
defendant's  property,  unless  his  action  was  malicious.24 


195.  DECREES  BY  DEFAULT 

If,  on  the  hearing  day,  no  defense  has  been  interposed, 
then,  under  the  provisions  of  admiralty  rule  29,  all  persons 
are  deemed  in  contumacy  and  default,  the  libel  is  taken  for 
confessed,  and  the  court  hears  the  cause  ex  parte.  In  such 
case  no  proof  is  necessary,  except  as  to  damages,  if  un- 
liquidated, and  the  only  hearing  is  the  presentation  of  a 
decree  to  the  judge.25 

In  other  words,  a  decree  by  default  in  admiralty  resem- 
bles office  judgments  or  writs  of  inquiry  at  common  law, 
or  a  bill  taken  for  confessed  in  equity.26 

In  case  of  such  default  the  court  may  at  any  time  with- 
in ten  days,  for  cause  shown,  reopen  the  decree,  and  per- 
mit defense.     But  in  default  decrees  this  power  is  limited 

23  Roberts  v.  The  Iluntsville,  Fed.  Cas.  No.  11,904;  Union,  Fed. 
Cas.  No.  14,346;  White  Squall,  Fed.  Cas.  No.  17,570;  Wm.  F.  McRae 
(D.  C.)  23  Fed.  558 ;  Monarch  (D.  O.)  30  Fed.  283 ;  Mutual  (D.  C.)  78 
Fed.  144;  Cleveland  (D.  C.)  98  Fed.  631.  The  I.  F.  Chapman,  241 
Fed.  836,  154  C.  C.  A.  538,  is,  in  the  author's  judgment,  contrary  to 
the  weight  of  authority,  and  sustainable,  if  at  all,  only  under  its 
peculiar  facts. 

24  Alcalde  (D.  C.)  132  Fed.  576;  Admiral  Cecille  (D.  C.)  134  Fed. 
673 ;   Watt  v.  Cargo  of  Lumber,  161  Fed.  104,  88  C.  C.  A.  268. 

§  195.  25  Cape  Fear  Towing  &  Transp.  Co.  v.  Pearsall,  90  Fed. 
435,  33  C.  C.  A.  161. 

-<;  Miller  v.  U.  S.,  11  Wall.  294,  20  L.  Ed.  135;  United  States  v. 
Mollie,  2  Woods,  318,  Fed.  Cas.  No.  15,795 ;  Water  Witch  (C.  C.)  44 
Fed.  95 ;  Thomson  v.  Wooster,  114  U.  S.  104,  5  Sup.  Ct.  788,  29  L.  Ed. 
105;  Cape  Fear  Towing  &  Transp.  Co.  v.  Pearsall,  90  Fed.  435,  33 
C.  C.  A.  161. 


§  196)  THE    DEFENSE  400 

to  ten  days.  On  the  lapse  of  that  time  the  decree  becomes 
as  final  as  a  court  judgment  after  the  adjournment  of  the 
term.27 

There  is  some  conflict  of  authority  whether  there  is  such 
a  thing  known  to  the  admiralty  law  as  a  libel  of  review. 
The  better  opinion  seems  to  be  that  there  is;  but  it  is  a 
power  reluctantly  exercised,  and  lies  only  for  errors  ap- 
parent on  the  face  of  the  record,  or  for  fraud.  It  does  not 
lie  to  enable  a  party  to  set  up  facts  or  defenses  which  his 
own  carelessness  overlooked.28 


196.  THE  DEFENSE 

If  the  defendant  does  not  wish  to  let  his  case  go  by  de- 
fault, he  raises  any  legal  points  apparent  on  the  libel  by 
exception,  which  corresponds  to  a  demurrer,29  and  he  sets 
up  defenses  of  fact  by  answer.  This  must  be  on  oath  or 
affirmation,  and  must  be  full  and  explicit  to  each  article  of 
the  libel,  and  it  may  propound  interrogatories  to  the  li- 
belant.30 

If  it  is  not  sufficiently  full,  the  libelant  may  except. 

An  answer  in  admiralty  has  only  the  effect  of  a  denial. 
Unlike  an  answer  in  chancery,  it  is  not  evidence  in  favor  of 
respondent.31 

27  Admiralty  rule  40  (29  Sup.  Ct.  xliii) ;  SNOW  v.  EDWARDS,  2 
Tx>w.  273,  Fed.  Cas.  No.  13,145;  Illinois,  5  Blatchf.  256,  Fed.  Cas. 
No.  7,002;  Northrop  v.  Gregory,  2  Abb.  U.  S.  503,  Fed.  Cas.  No. 
10,327. 

2  8  NEW  ENGLAND,  3  Sunin.  495,  Fed.  Cas.  No.  10,151;  North- 
western Car  Co.  v.  Hopkins,  4  Biss.  51,  Fed.  Cas.  No.  10,334 ;  Dexter 
v.  Arnold,  3  Mason,  2S4,  Fed.  Cas.  No.  3,855;  Columbia  (D.  C.)  100 
Fed.  890;  New  York,  113  Fed.  810,  51  C.  C.  A.  482;  Hall  v.  Chis- 
holm,  117  Fed.  807,  55  C.  C.  A.  31. 

§  196.     29  White  v.  Cynthia,  Fed.  Cas.  No.  17,546a. 

so  Admiralty  rule  27  (29  Sup.  Ct.  xlii). 

si  Cushman  v.  Ryan,  1  Story,  91,  Fed.  Cas.  No.  3,515;  Eads  v. 
The  H.  D.  Bacon,  Newb.  Adm.  274,  Fed.  Cas.  No.  4,232. 


410  SUMMARY   OP   PLEADING  AND   PEACTICE  (Cll.  18 

Things  neither  admitted  nor  denied  by  the  answer  are  not 
taken  as  true,  but  must  be  proved.32 

The  defendant,  in  his  answer,  may  set  up  want  of  juris- 
diction of  the  subject-matter  and  a  defense  on  the  merits.33 

Of  course,  he  cannot  plead  mere  want  of  jurisdiction  over 
the  person,  and  defend  on  the  merits,  as  that  would  be  a 
general  appearance  in  any  system  of  pleading-.84 

Hence,  when  the  facts  showing  lack  of  jurisdiction  over 
the  person  or  exemption  from  suit  do  not  appear  on  the 
libel,  such  defense  must  be  set  up  by  exception,  which  cor- 
responds more  to  a  dilatory  plea  than  to  a  demurrer,  as  it 
sets  up  additional  facts.35 

The  answer,  if  sufficient,  or  if  not  excepted  to,  puts  the 
case  at  issue.     No  replication  is  necessary.36 

197.  THE  TRIAL 

As  admiralty  is  not  a  court  of  terms,  the  case  goes  at  once 
on  the  trial  calendar,  and  may  be  called  up  at  any  time 
convenient. 

It  is  tried  before  the  judge  (there  are  no  juries  in  ad- 
miralty proceedings  proper),  who  hears  the  witnesses  ore 
tenus,  or,  if  he  sees  fit,  appoints  a  commissioner  to  take  the 
evidence  down  in  writing,  and  report  it  to  him  later.  In 
this  matter  the  practice  varies  in  the  different  districts.  In 
the  Eastern  district  of  Virginia  the  rule  requires  that  in 
cases  involving  over  $500  the  evidence  shall  be  ore  tenus, 
and  taken  down  in  shorthand ;  and  the  stenographer's 
notes,  when  written  out,  constitute  the  record  in  the  event 
of  an  appeal. 

82  Clarke  v.  Dodge  Healy,  4  Wash.  C.  C.  G51.  Fed.  Cas.  No.  2,840. 
88  Ijndrup  (D.  C.)  G2  Fed.  851. 
34  Jones  v.  Andrews.  10  Wall.  329,  10  L.  Ed.  935. 
so  August  Belmont  (D.  C.)  153  Fed.  639;    Koenigin  Luise  (D.  C.) 
184  Fed.  170,  172. 

:<«  Admiralty  rule  51  f'-!0  Sup.  Ct.  xliv). 


§  198)  EVIDENCE  411 

A  similar  practice  is  prevalent  in  the  other  jurisdictions.*1 

On  account  of  the  shifting  character  of  marine  witnesses, 
the  cases  are  rare  where  all  the  evidence  can  be  offered  in 
court.  In  order  to  save  the  testimony  of  departing  wit- 
nesses, or  secure  the  testimony  of  nonresidents,  it  is  usually 
necessary  to  take  many  depositions  de  bene  esse.  They  are 
taken  on  notice,  pursuant  to  the  provisions  of  section  863, 
Rev.  St.  (U.  S.  Comp.  St.  §  1472),  or  the  act  of  March  9, 
1892.  permitting  them  to  be  taken  as  in  the  state  courts.38 

In  practice,  counsel  are  liberal  with  each  other  in  such 
matters,  accepting  short  notice,  allowing  the  evidence  to 
be  taken  in  shorthand,  waiving  the  witnesses'  signatures, 
and  even  the  filing  of  the  deposition  till  the  hearing. 

When  the  case  comes  on,  it  is  heard  and  argued  substan- 
tially as  a  chancery  cause  would  be. 

If  the  damages  are  not  known  or  agreed  to,  the  judge,  in 
the  event  of  a  decision  for  libelant,  usually  refers  the  mat- 
ter to  a  commissioner  by  an  interlocutory  decree  to  inquire 
into  and  assess  the  damages.  Under  admiralty  rule  44  this 
commissioner  has  about  the  powers  of  a  master  in  chan- 
cery. Those  dissatisfied  with  his  report  may  except  to  it, 
and  upon  it  and  such  exceptions  the  court  renders  its  final 
decree. 

198.  EVIDENCE 

Section  858  of  the  Revised  Statutes,  as  amended  June  29, 
1906,  provides  that  the  competency  of  a  witness  to  testify 
in  any  civil  action,  suit  or  proceeding  in  the  courts  of  the 
United  States  shall  be  determined  by  the  laws  of  the  state 
or  territory  in  which  the  court  is  held.39 

§  197.  3  7  Neilson  v.  Coal,  Cement  &  Supply  Co.,  122  Fed.  617,  60  C. 
C.  A.  175:    Rogers  v.  Brown  (D.  C.)  136  Fed.  813. 

38  27  Stat.  7   (U.   S.  Comp.   St.  §  1476V 

§  198.  39  U.  S.  Comp.  St.  §  1464.  For  the  statutes  regulating  evi- 
dence, see  post,  p.  49S.     See,  also,  Hughes  on  Federal  Procedure,  10. 


412  SUMMARY   OP  PLEADING  AND  PRACTICE  (Cll.  18 


199.  ATTACHMENTS  IN  ADMIRALTY 

It  has  been  settled  that  the  common-law  and  chancery- 
courts  of  the  United  States  have  no  jurisdiction  of  suits  by- 
foreign  attachment  against  nonresidents,  for  the  reason  that 
by  the  federal  statutes  no  person  can  be  sued,  as  a  general 
rule  except  in  the  district  where  he  lives.40 

Since  the  last-cited  decision,  however,  the  Tucker-Cul- 
bertson  Act  allows  suits  to  be  brought  in  the  district  of  the 
plaintiff's  residence,  so  that  a  process  of  foreign  attachment 
could  be  sustained  in  such  district  if  the  defendant  can  be 
served  with  process. 

In  admiralty,  however,  a  libel  accompanied  by  an  attach- 
ment can  be  sustained,  as  these  statutes  do  not  apply  to  the 
admiralty  courts.41 

200.  SET-OFF 

Set-off  cannot  be  pleaded  in  admiralty  as  it  is  the  creature 
of  statutes  which  were  passed  for  the  common-law  and 
chancery  courts,  and  were  not  intended  to  apply  to  the  ad- 
miralty courts.42 

This,  however,  does  not  prevent  a  counterclaim  arising 
out  of  the  same  transaction  from  being  used  to  recoup  the 
damages.43 

§  199.  40  Ex  parte  Des  Moines  &  M.  R.  Co.,  103  U.  S.  794,  26  L. 
Ed.  461. 

4i  IN  RE  LOUISVILLE  UNDERWRITERS,  134  U.  S.  488,  10  Sup. 
Ct.  5S7,  33  L.  Ed.  991 ;  Reilly  v.  Philadelphia  &  R.  R.  Co.  (D.  C.)  109 
Fed.  349. 

§  200.  42  Willard  v.  Dorr,  3  Mason,  91,  Fed.  Cas.  No.  17,679; 
O'Brien  v.  1,614  Bags  of  Guano  (D.  C.)  48  Fed.  726. 

48  Bowkor  v.  U.  S.,  1S6  U.  S.  135,  22  Sup.  Ct.  S02,  46  L.  Ed.  1090; 
Howard  v.  9,889  Bags  of  Malt  (D.  C.)  255  Fed.  917. 


§  202)  TENDER  413 


201.  LIMITATIONS 

Admiralty  is  not  bound  by  the  statutes  of  limitation,  for 
this  same  reason  that  they  do  not  in  terms  apply  to  those 
courts.  Hence,  where  the  rights  of  third  parties  have  in- 
tervened, an  admiralty  court  will  hold  a  claim  stale  in  a 
much  shorter  period  than  that  prescribed  by  the  statutes, 
and  we  have  seen  in  other  connections  that  among  admiral- 
ty liens  of  the  same  character  the  last  is  preferred  to  the 
first.44 

But,  as  between  the  original  parties,  unless  special  cir- 
cumstances have  intervened,  the  admiralty  courts  adopt  the 
statutes  of  limitation  by  analogy,  the  doctrine  being  sub- 
stantially the  same  as  the  chancery  doctrine  on  the  sub- 
ject.45 

202.  TENDER 

In  the  matter  of  tender,  admiralty  is  not  as  rigid  as  the 
other  courts.  A  formal  offer  in  actual  cash  is  not  de  rig- 
ueur.  Any  offer  to  pay,  followed  up  by  a  deposit  of  the 
amount  admitted  in  the  registry  of  the  court,  is  sufficient.48 

§  201.  44  Ante,  pp.  103,  115,  392 ;  Nikita,  62  Fed.  936,  10  C.  C.  A. 
674. 

45  Sarah  Ann,  2  Sumn.  206,  Fed.  Cas.  No.  12,342 ;  Queen  (D.  O.) 
78  Fed.  155;  Pacific  Coast  S.  S.  Co.  v.  Bancroft- Whitney  Co.,  94 
Fed.  180,  36  C.  C.  A.  135 ;  Queen  of  the  Pacific,  ISO  U.  S.  49,  21  Sup. 
Ct.  278,  45  L.  Ed.  419;  Southard  v.  Brady  (C.  C.)  36  Fed.  560; 
Southwark  (D.  C.)  128  Fed.  149;  Davis  v.  Smokeless  Fuel  Co.,  196 
Fed.  753,  116  C.  C.  A.  381. 

§  202.  46  Dedekam  v.  Vose,  Fed.  Cas.  No.  3,729;  Boulton  v.  Moore 
(C.  C.)  14  Fed.  922. 


414:  SUMMARY   OF   PLEADING   AND   PRACTICE  (Ch.lQ 


203.  COSTS 

In  the  matter  of  costs  admiralty  courts  exercise  a  wide 
discretion,  and  often  withhold  them  as  a  punishment  in 
case  the  successful  litigant  has  been  guilty  of  oppression, 
or  has  put  his  opponent,  by  exorbitant  demands,  to  unnec- 
essary inconvenience  or  expense.47 

The  act  of  July  20,  1892,  as  amended  June  25,  1910,4S 
permits  suits  in  forma  pauperis  without  requiring  security 
for  costs.  The  act,  if  intended  to  apply  to  the  admiralty 
courts,  frequently  works  great  injustice  by  tying  up  large 
steamers  in  foreign  ports  till  they  give  bond ;  and  they  are 
remediless  if  the  cause  of  action  is  unfounded. 


204.  ENFORCING  DECREES 

If,  after  the  trial  and  all  its  incidents  are  oyer,  the  decision 
is  in  favor  of  libelant,  and  there  is  no  appeal,  the  final  de- 
cree, in  case  the  vessel  has  been  released,  goes  against  the 
stipulators,  and  under  admiralty  rule  21  can  be  enforced  by 
a  writ  of  fieri  facias. 

In  case  the  vessel  has  not  been  released,  the  final  decree 
provides  that  she  be  advertised  and  sold  by  the  marshal  of 
the  district,  who  alone,  under  admiralty  rule  41,  can  per- 
form this  duty.49  The  practice  is  to  make  the  sale  for  cash, 
and  the  rule  requires  it  to  be  deposited  in  the  registry  of 
the  court,  to  await  its  further  orders. 

A  sale  by  the  marshal  vests  a  clear  title  against  the 
world.60 

§  203.  **  Shaw  v.  Thompson,  Oleott,  144,  Fed.  Cas.  No.  12,726; 
Lyra  (C.  C.  A.)  255  Fed.  667. 

4*  27  Stat.  252:   36  Stat.  866  (U.  S.  Comp.  St.  §  1626);   post,  p.  505. 

§  204.  49  Lambert's  Point  Towboat  Co.  v.  U.  S.,  1S2  Fed.  3SS,  10 1 
C.  C.  A.  598. 

so  Trenton  (D.  C.)  4  Fed.  657;    Evangel  (D.  C.)  94  Fed.  680. 


§  206)       TI1E   COURTS   HAVING   ADMIRALTY  JURISDICTION        415 

Admiralty  rule  42  requires  money  in  the  registry  of  the 
court  to  be  drawn  out  by  checks  signed  by  the  judge. 

Under  rule  43,  parties  having  any  interest  in  the  vessel 
may  come  in  by  petition,  and  assert  it.  Under  this,  a  party 
holding  any  sort  of  lien  may  come  in,  but  not  any  party 
having  a  mere  personal  claim  upon  the  owner.51 

205.  THE  FIFTY-NINTH  RULE 

This  rule  52  permits  the  owner  of  one  of  two  vessels 
which  has  been  libeled  in  a  collision  case  by  a  third  party  to 
bring  in  the  other  vessel  if  he  can  find  her,  and  have  the 
damages  assessed  against  either  or  both,  according  to  the 
fact.53 

The  principle  of  this  rule  has  been  applied  to  many  analo- 
gous cases,  in  the  effort  to  place  the  responsibility  where 
it  equitably  belongs.54 

206.  THE   COURTS    HAVING   ADMIRALTY    JURIS- 
DICTION 

The  federal  Constitution  vests  the  judicial  power  in  one 
Supreme  Court  and  such  inferior  courts  as  Congress  shall 
from  time  to  time  establish.  Acting  under  this  authority, 
Congress,  by  the  Judiciary  Act  of  1789,  divided  the  United 
States    into    districts,    and    established    in   each    district   two 

si  Edith,  94  U.  S.  518,  24  L.  Ed.  167 ;  Leland  v.  Medora,  2  Woodb. 
&  M.  92.  Fed.  Cas.  No.  8,237;  Brackett  v.  Hercules,  Gilp.  184,  Fed. 
Cas.  No.  1,762. 

§  205.     5  2  Admiralty  rule  59  (29  Sup.  Ct.  xlvi). 

53  Ante,  p.  320;  Hudson,  Fed.  Cas.  No.  6.S28;  Joiee  v.  Canal  Boats 
Nos.  1,758  and  1,892  (D.  C.)  32  Fed.  553 ;  Greenville  (D.  C.)  58  Fed. 
805. 

6*Dailey  v.  New  York  (D.  C.)  119  Fed.  1005;  Crown  of  Castile 
(D.  C.)  148  Fed.  1012 ;  Evans  v.  New  York  &  P.  S.  S.  Co.  (D.  C.)  163 
Fed.  405;  Daylight  (D.  C.)  206  Fed.  864;  Barnstable,  181  U.  S.  461, 
21  Sup.  Ct.  684,  45  L.  Ed.  954. 


416  SUMMARY  OF  PLEADING  AND  PRACTICE  (Ch.  18 

courts  of  original  jurisdiction,  the  District  Court  and  the 
Circuit  Court.  To  the  District  Court  all  classes  of  peculiar 
or  special  character  were  assigned,  such  as  suits  for  penal- 
ties, admiralty,  and  bankruptcy  cases,  and  minor  criminal 
cases.  On  the  Circuit  Court  was  conferred  the  general  cur- 
rent litigation  usual  between  man  and  man,  including  all 
cases  of  common  law  and  equity,  and  more  important  crim- 
inal cases.  The  Circuit  Court  was  also  given  appellate  ju- 
risdiction of  most  of  the  subjects  of  District  Court  cog- 
nizance, including  admiralty  cases. 

There  was  a  District  Judge  appointed  for  each  district, 
who  was  empowered  to  hold  both  the  District  and  Circuit 
Courts  for  that  district,  except  that  he  could  not  sit  in  the 
Circuit  Court  on  appeals  from  his  own  decisions.  To  pro- 
vide an  appellate  judge  for  such  cases,  the  districts  were 
grouped  into  larger  units,  called  "circuits,"  equal  in  num- 
ber to  the  justices  of  the  Supreme  Court,  and  each  Justice, 
during  the  recess  of  that  court,  went  around  his  circuit, 
holding  the  Circuit  Court  in  each  district. 

Thus  appeals  from  the  District  Courts  in  admiralty-were 
tried  in  the  Circuit  Court  by  the  Supreme  Court  Justice  for 
that  circuit.  The  appeal  took  up  questions  both  of  law  and 
fact  for  review,  the  notes  of  evidence  taken  by  the  District 
Judge  being  the  evidence  on  appeal ;  but  the  trial  was  de 
novo,  being  rather  a  new  trial  than  an  appeal,  and  new  evi- 
dence could  be  introduced  in  the  appellate  court.  In  the 
event  of  an  adverse  decision  in  the  Circuit  Court,  there  was 
a  second  appeal,  both  on  law  and  fact,  to  the  Supreme  Court, 
in  cases  involving  over  $2,000. 

The  increase  of  litigation  consequent  on  the  Civil  War 
was  so  great  that  it  was  found  necessary  to  increase  the  ju- 
dicial force,  and  lighten  the  labors  of  the  Supreme  Court  jus- 
tices. Hence,  in  1869,  Congress  enacted  that  there  should 
be  an  additional  judge  appointed  for  each  judicial  circuit,  to 
be  called  a  "Circuit  Judge."  He  could  hold  the  Circuit 
Court  in  any  district  of  his  circuit. 


§  206)       THE   COURTS  HAVING  ADMIRALTY  JURISDICTION         417 

The  docket  of  the  Supreme  Court  became  more  and  more 
congested,  and  further  relief  became  imperative.  And  so, 
by  the  act  of  February  16,  1875,  Congress  raised  the  limit 
of  appeals  to  the  Supreme  Court  to  $5,000,  and  further  pro- 
vided that  in  admiralty  there  should  no  longer  be  an  appeal 
to  that  court  on  questions  both  of  law  and  fact,  but  that 
the  Circuit  Judge  on  an  admiralty  appeal  from  the  district 
court  should  make  a  finding  of  the  facts,  and  draw  his  con- 
clusions of  law  therefrom,  and  the  case  then  went  to  the 
Supreme  Court  simply  on  this  finding,  and  no  longer  on 
all  questions,  both  of  law  and  fact.  This,  however,  still  left 
the  litigant  one  appeal  on  questions  of  fact — that  from  the 
District  Court  to  the  Circuit  Court. 

This  continued  to  be  the  law  until  the  act  of  March  3, 
1891,  known  as  the  "Appellate  Courts  Act."  It  created  an 
additional  Circuit  Judge  for  each  circuit,  abolished  the  ap- 
pellate jurisdiction  of  the  Circuit  Court,  and  established  a 
new  appellate  court  in  each  circuit,  composed  of  the  Circuit 
Justice  and  the  two  Circuit  Judges,  but  with  the  District 
Judges  used  to  fill  vacancies.  Under  this  law  admiralty 
appeals  from  the  District  Court  go  to  this  appellate  court, 
with  no  restriction  as  to  the  amount  involved,  and  on  the 
full  record  of  the  District  Court,  thereby  nominally  giving  a 
review  of  questions  both  of  law  and  fact.  This  new  appel- 
late court  is  the  court  of  last  resort  in  admiralty  cases,  ex- 
cept that  it  may  certify  to  the  Supreme  Court  for  decision 
any  questions  as  to  which  it  may  desire  instruction,  and 
except,  also,  that  the  Supreme  Court  may,  by  certiorari, 
bring  up  for  review  any  cases  that  it  may  deem  of  sufficient 
importance. 

The  Circuit  Court,  having  lost  its  appellate  jurisdiction 
by  the  Appellate  Courts  Act  of  1891,  was  finally  abolished, 
and  its  original  jurisdiction  transferred  to  the  District 
Court,  by  the  act  of  March  3,  1911,  known  by  the  short  title 
of  the  "Judicial  Code,"  but  this  is  immaterial  to  the  pres- 
HunnES,ADM.  (2d  Ed.) — 27 


418  SUMMARY   OF   PLEADING  AND   PRACTICE  (Ch.  18 

ent  subject,  as  the  Circuit  Court  had  no  original  jurisdiction 
in  admiralty.55 


207.  THE    PROCESS    OF    APPEAL 

The  process  of  appeal  varies  in  the  different  circuits  under 
their  different  rules.  In  the  Fourth  circuit,  as  soon  as  the 
final  decree  is  entered  in  the  District  Court,  a  petition  is 
filed  in  that  court,  addressed  to  the  judges  of  the  Circuit 
Court  of  Appeals,  praying  an  appeal,  and  assigning  errors. 
On  this  the  District  Judge  (or  any  judge  of  the  appellate 
court)   indorses:    "Appeal  allowed.     Bond  required  in  the 

penalty   of   $ ,   conditioned    according    to    law" — and 

signs  it.  He  also  signs  the  citation,  which  is  the  notice  of 
appeal  given  to  the  other  side,  and  cites  him  to  appear 
in  the  appellate  court  at  a  day  named  to  defend  his  decree. 
A  certified  copy  of  the  entire  transcript  is  then  obtained 
from  the  district  clerk,  and  filed  with  the  clerk  of  the  appel- 
late court,  who  dockets  the  case,  and,  when  secured  as  to 
costs,  has  the  record  printed. 

Under  the  act  of  February  13,  1911,  the  appellant  is  al- 
lowed to  print  his  own  record,  instead  of  securing  a, tran- 
script from  the  clerk  of  the  trial  court  and  then  having  it 
printed  by  the  clerk  of  the  appellate  court.50 

The  act  of  March  3,  1891,  provides  that  the  appeal  must 
be  taken  within  six  months  from  the  decree  complained  of, 
"unless  a  lesser  time  is  now  allowed  by  law."  Appeals  in 
admiralty  cases  are  governed  by  the  six  months  limitation, 
and  are  unaffected  by  the  clause  above  quoted.57 

§  200.     "  36  Stat.  10S7  (U.  S.  Comp.  St.  §§  968-1274). 
§  207.     oe  so  Stat.  901  (U.  S.  Comp.  St.  §§  1650,  1637). 
"New  York,  44  C.  C.  A.  38,  104  Fed.  561;    Robins  Dry  Dock  & 
Repair  Co.  v.  Chesbrough,  210  Fed.  121,  132  C.  C.  A.  365. 


§  208)         QUESTIONS  OF  FACT  ON  APPEAL  419 


208.  QUESTIONS  OF  FACT  ON  APPEAL 

Although  the  intent  of  Congress  to  give  an  appeal  on 
questions  both  of  law  and  fact  is  clear,  and  it  is  notorious 
that  the  act  of  February  16,  1875,  while  it  was  in  force,  was 
far  from  satisfactory,  this  has  been  largely  frittered  away 
by  judicial  decisions.  The  appellate  courts  have  gone  very 
far  in  practically  refusing  to  review  questions  of  fact  where 
the  District  Judge  has  had  the  witnesses  before  him,  though 
not  so  far  where  part  or  all  of  the  evidence  has  been  by  dep- 
osition. This  doctrine  is  largely  an  abdication  of  the  trust 
confided  in  them,  and,  for  an  admiralty  court,  smacks  too 
much  of  the  old  common-law  fiction  as  to  the  sacredness 
of  the  jury's  verdict.  Under  the  old  law  giving  a  review  on 
questions  of  law  and  fact  the  Supreme  Court  has  more 
than  once  spoken  of  a  right  of  appeal  as  something  more 
than  a  shadow.58 

A  finding,  unsupported  by  any  evidence  or  ignoring  ma- 
terial and  proven  facts,  will  be  disregarded.59 

In  fact,  this  theory  about  the  trial  judge  being  endowed  with 
clairvoyance  because  he  saw  the  witnesses  has  degenerated  into 
a  mere  makeweight  for  that  films  nullius,  the  per  curiam 
opinion. 

The  judicial  ermine,  unlike  the  mantle  of  Elijah,  con- 
fers no  supernatural  powers.  The  most  truthful  men  often 
make  the  worst  witnesses.    If  the  trial  judge  could  decide 

§  208.  bs  post  v.  Jones,  19  How.  150,  15  L.  Ed.  61S ;  ARIADNE, 
13  Wall.  475,  20  D.  Ed.  542 ;  City  of  Hartford,  97  U.  S.  323,  24  L. 
Ed.  930;  Gypsum  Prince,  67  Eed.  612,  14  C.  C.  A.  573;  Glendale, 
81  Fed.  633,  26  C.  C.  A.  500 ;  Albany,  81  Fed.  906,  27  C.  C.  A.  28 ; 
Captain  Weber,  89  Fed.  957,  32  C.  C.  A.  452;  Lazarus  v.  Barber, 
136  Fed.  534,  69  C.  C.  A.  310 ;  Kia  Ora,  252  Fed.  507,  164  C.  C.  A. 
423. 

so  Darlington  v.  Turner,  202  U.  S.  195,  26  Sup.  Ct.  630,  50  D.  Ed. 
992;    Fullerton,  211  Fed.  833,  128  C.  C.  A.  359. 


420  SUMMARY   OF   PLEADING   AND   PEACTICE  (Ch.  18 

cases  at  their  close,  as  juries  render  verdicts,  there  would 
be  more  force  in  the  idea.  But  in  districts  of  crowded  dock- 
ets, where  numerous  cases,  each  with  numerous  witnesses, 
are  tried  in  rapid  succession,  and  then  taken  under  advise- 
ment for  months,  nothing  short  of  a  moving  picture  screen, 
with  a  photographic-phonographic  attachment,  could  bring 
it  back  to  the  judicial  mind.  To  give  this  amiable  fiction 
the  scope  which  it  has  often  been  given  is  in  effect  to  deny 
an  appeal  on  questions  of  fact,  which  the  statutes  are  sup- 
posed to  give.  That  seeing  the  witnesses  is  an  advantage 
cannot  be  denied.  But  its  importance  has  been  grossly  ex- 
aggerated. Surely  the  combined  intelligence  of  the  three 
appellate  judges  as  against  the  one  trial  judge  ought  to 
overbalance  it. 

209.  NEW  EVIDENCE 

A  peculiar  feature  of  admiralty  appeals  formerly  was  that 
an  admiralty  appeal  was  a  new  trial.  An  appeal  from  the 
district  to  the  circuit  court  was  like  one  from  a  magistrate 
in  the  state  procedure — new  witnesses  could  be  examined, 
and  the  circuit  court  entered  its  own  decree,  and  issued  its 
own  execution,  instead  of  remanding  the  case  to  the  dis- 
trict court  for  future  proceedings. 

Even  an  appeal  from  the  Circuit  to  the  Supreme  Court 
Avas  so  far  a  new  trial  that  additional  witnesses  could  be  ex- 
amined, but  the  Supreme  Court  restricted  this  right  by 
rule  to  evidence  which  could  not  have  been  produced  in  the 
lower  courts,  and  required  it  to  be  taken  by  deposition. 
In  other  words,  they  discouraged  the  practice  as  much  as 
possible  on  account  of  its  obvious  injustice  and  liability  to 
abuse.60 

The  new  appellate  courts  have  adopted  substantially  the 
same  doctrine.    In  case  an  appeal  is  taken  up  with  a  record 

§  209.    co  Mabey,  10  Wall.  419,  19  L.  Ed.  903. 


§  209)  NEW  EVIDENCE  421 

not  containing-  the  evidence,  they  will  not  review  the  facts 
at  all.61' 

It  is  still  a  new  trial  in  its  effect  on  the  decree  of  the  trial 
court — so  far  in  fact  that  the  appellate  court  can  consider 
changes  in  fact  and  law  arising  after  the  decree.62 

In  the  Glide,03  a  case  was  tried  in  the  District  Court  of 
Maryland,  the  witnesses  being  examined  ore  tenus,  but 
there  was  no  rule  in  that  district  requiring  their  testimony 
to  be  taken  down,  and  it  was  not  taken  down.  The  unsuc- 
cessful party  appealed,  and  asked  for  a  commission  to  re- 
take his  testimony  for  use  on  appeal.  The  court  permitted 
it,  on  the  ground  that  it  was  not  his  fault  if  the  district 
court  rule  did  not  provide  for  such  a  case.  The  court,  after 
arguing  out  his  right  to  retake  his  testimony,  ended  its  opin- 
ion by  saying  that  the  case  must  not  be  taken  as  a  precedent, 
and  any  party  who  omitted  or  neglected  to  have  his  testi- 
mony taken  down  must  suffer  the  consequences.  So  it 
sounds  very  much  like  a  verdict  of  "Not  guilty,  but  don't  do 
it  again." 

The  fact  that  there  was  no  rule  requiring  it  was  not  much 
of  an  excuse.  In  the  common-law  courts  there  is  no  rule 
or  statute  requiring-  evidence  to  be  preserved  for  the  pur- 
pose of  preparing  bills  of  exceptions,  but  the  lawyer  who 
gave  that  as  an  excuse  for  not  setting  out  the  evidence  in 
his  bill  would  receive  scant  consideration  from  a  judge. 

The  well-known  characteristics  of  sailor  witnesses,  and 
the  utter  lack  of  any  check  on  them  in  case  their  testimony 
is  not  in  black  and  white,  especially  after  they  have  found 
out  by  hearing  the  arguments  in  the  first  trial  how  their 

si  PMladelphian,  60  Fed.  423,  9  C.  C.  A.  54. 

62  Hawkins,  In  re,  147  U.  S.  4S6,  13  Sup.  Ct.  512,  37  L.  Ed.  251; 
Reid  v.  Fargo.  241  U.  S.  544,  36  Sup.  Ct.  712,  60  L.  Ed.  1156;  Watts, 
Watts  &  Co.  v.  Unione  Austriaca  di  Nayigazione,  248  U.  S.  9,  39  Sup. 
Ct.  1.  63  L.  Ed.  100,  3  A.  L.  R.  323. 

6  3  72  Fed.  200,  IS  C.  C.  A.  504. 


422  SUMMARY  OF  PLEADING  AND  PRACTICE  ( Ch.  18 

case  should  be  strengthened,  render  the  procedure  permit- 
ted in  this  case  one  of  the  gravest  danger.8* 

Under  the  present  law,  the  appellate  court  remands  the 
case  to  the  District  Court  for  final  action,  instead  of  entering 
its  own  decree,  as  the  old  Circuit  Court  did. 

e*  Taylor  v.  Harwood,  Taney,  437,  Fed.  Cas.  No.  13,794.  In  Neil- 
son  v.  Coal,  Cement  &  Supply  Co.,  122  Fed.  617,  60  C.  C.  A.  175,  the 
same  court  and  judge  emphasized  the  necessity  of  having  the  testi- 
mony taken  down  in  the  trial  court.  See,  also,  McDonald,  112  Fed. 
681,  50  C.  C.  A.  423. 


APPENDIX 


1.  The  Mariner's  Compass. 

2.  The  Salvage  Act  of  August  1,  1912. 

3.  Statutes  Regulating  Navigation,  Including: 

(1)  The  International  Rules. 

(2)  The  Rules  for  Coast  and  Connecting  Inland  Waters. 

(3)  Lines  between  International  and  Inland  Rules. 

(4)  The  Lake  Rules. 

(5)  The  Mississippi  Valley  Rules. 

(6)  The  Act  of  March  3,  1899,  as  to  Obstructing  Chan- 

nels. 

(7)  The  Stand-By  Act  of  September  4,  1890. 

4.  The  Limited  Liability  Acts  Including: 

(1)  The  Act  of  March  "3,  1851,  as  Amended. 

(2)  The  Act  of  June  26,  1884. 

5.  Section  941,   Rev.    St.,   as   Amended,   Regulating   Release 
of  Vessels  from  Arrest,  on  Bond  or  Stipulation. 

6.  Statutes  Regulating  Evidence  in  the  Federal  Courts. 

7.  The  Handwriting  Act  of  February  26,  1913. 

8.  Suits  in  Forma  Pauperis. 

9.  Certain  Admiralty  Suits  against  the  United  States. 

10.  The  Admiralty  Rules  of  Practice. 

Htjghes.Adm.  (2d  Ed.)  (423) 


1.  THE  MARINER'S  COMPASS 


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Appdx.)  THE   SALVAGE   ACT   OF  AUGUST   1 ,  1912  425 

2.  THE  SALVAGE  ACT 

ACT  AUGUST  1,  1912  (37  Stat.  242,  U.  S.  Comp.  St.  §§ 

7990-7994). 

An  act  to  harmonize  the  national  law  of  salvage  with  the 
provisions  of  the  international  convention  for  the  unifica- 
tion of  certain  rules  with  respect  to  assistance  and  sal- 
vage at  sea,  and  for  other  purposes. 

Section  1.  (U.  S.  Comp.  St.  §  7990.)  Salvage;  remunera- 
tion not  affected  by  ownership  of  vessel — The  right  to  re- 
muneration tor  assistance  or  salvage  services  shall  not  be 
affected  by  common  ownership  of  the  vessels  rendering  and 
receiving  such  assistance  or  salvage  services.  (37  Stat. 
242.) 

Sec.  2.  (U.  S.  Comp.  St.  §  7991.)  Assistance  to  be  ren- 
dered by  master;  punishment  for  failure — The  master  or 
person  in  charge  of  a  vessel  shall,  so  far  as  he  can  do  so 
without  serious  danger  to  his  own  vessel,  crew,  or  passen- 
gers, render  assistance  to  every  person  who  is  found  at  sea 
in  danger  of  being  lost;  and  if  he  fails  to  do  so,  he  shall. 
upon  conviction,  be  liable  to  a  penalty  of  not  exceeding 
one  thousand  dollars  or  imprisonment  for  a  term  not  ex- 
ceeding two  years,  or  both.     (37  Stat.  242.) 

Sec.  3.  (U.  S.  Comp.  St.  §  7992.)  Salvors  of  life  to  share 
in  property  saved — Salvors  of  human  life,  who  have  taken 
part  in  the  services  rendered  on  the  occasion  of  the  acci- 
dent giving  rise  to  salvage,  are  entitled  to  a  fair  share  of 
the  remuneration  awarded  to  the  salvors  of  the  vessel,  her 
cargo,  and  accessories.     (37  Stat.  242.) 

Sec.  4.  (U.  S.  Comp.  St.  §  7993.)  Time  limit  for  salvage 
suits — A  suit  for  the  recovery  of  remuneration  for  render- 
ing assistance  or  salvage  services  shall  not  be  maintaina- 
ble if  brought  later  than  two  years  from  the  date  when  such 
assistance  or  salvage  was  rendered,  unless  the  court  in 
which  the  suit  is  brought  shall  be  satisfied  that  during:  such 


426  THE    SALVAGE   ACT   OF   AUGUST   1,1912  (Appdx. 

period  there  had  not  been  any  reasonable  opportunity  of 
arresting  the  assisted  or  salved  vessel  within  the  jurisdic- 
tion of  the  court  or  within  the  territorial  waters  of  the 
country  in  which  the  libelant  resides  or  has  his  principal 
place  of  business.     (37  Stat.  242.) 

Sec.  5.  (U.  S.  Comp.  St.  §  7994.)  Act  not  applicable  to 
ships  of  war,  etc. — Nothing  in  this  Act  shall  be  construed 
as  applying  to  ships  of  war  or  to  Government  ships  appro- 
priated exclusively  to  a  public  service.     (37  Stat.  242.) 

3.  STATUTES  REGULATING  NAVIGATION 

(I)   INTERNATIONAL  RULES  (26  Stat.  320,  as  amend- 
ed, 28  Stat.  82,  29  Stat.  381,  885,  31  Stat.  30,  and  34 
Stat.  850  [U.  S.  Comp.  St.  §§  7834-7871]). 

Be  it  enacted  by  the  Senate  and  House  of  Representa- 
tives of  the  United  States  of  America  in  Congress  assem- 
bled: 

Regulations  for  preventing  collisions — The  following  reg- 
ulations for  preventing  collisions  at  sea  shall  be  followed 
by  all  public  and  private  vessels  of  the  United  States  upon 
the  high  seas  and  in  all  waters  connected  therewith,  naviga- 
ble by  seagoing  vessels.  (Act  Aug.  19,  1890,  c.  802,  §  1, 
26  Stat.  320,  U.  S.  Comp.  St.  §  7834.) 

Preliminary 

Meaning  of  words — In  the  following  rules  every  steam- 
vessel  which  is  under  sail  and  not  under  steam  is  to  be  con- 
sidered a  sailing-vessel,  and  every  vessel  under  steam, 
whether  under  sail  or  not,  is  to  be  considered  a  steam-ves- 
sel. 

The  word  "steam-vessel"  shall  include  any  vessel  pro- 
pelled by  machinery. 

A  vessel  is  "under  way"  within  the  meaning  of  these 
rules  when  she  is  not  at  anchor,  or  made  fast  to  the  shore. 
or  aground.  (Act  Aug.  19,  1890,  c.  802,  §  1,  26  Stat.  320, 
U.  S.  Comp.  St.  §  7^35.) 


Appdx.)  INTERNATIONAL   RULES  427 

Rules  Concerning  Lights,  and  so  Forth 
Meaning  of  word  "visible" — The  word  "visible"  in  these 
rules  when  applied  to  lights  shall  mean  visible  on  a  dark 
night  with  a  clear  atmosphere.     (Act  Aug.  19,  1890,  c.  802, 
§  1,  26  Stat.  321,  U.  S.  Comp.  §  7836.) 

Article  1.  Time  for  compliance  with  rules  concerning 
lights — The  rules  concerning  lights  shall  be  complied  with 
in  all  weathers  from  sunset  to  sunrise,  and  during  such  time 
no  other  lights  which  may  be  mistaken  for  the  prescribed 
lights  shall  be  exhibited.  (Act  Aug.  19,  1890,  c.  802,  §  1,  26 
Stat.  321,  U.  S.  Comp.  St.  §  7837.) 

Art.  2.  Lights  of  steam  vessels  under  way — A  steam- 
vessel  when  under  way  shall  carry — (a)  On  or  in  front  of 
the  foremast,  or  if  a  vessel  without  a  foremast,  then  in  the 
fore  part  of  the  vessel,  at  a  height  above  the  hull  of  not 
less  than  twenty  feet,  and  if  the  breadth  of  the  vessel  ex- 
ceeds twenty  feet,  then  at  a  height  above  the  hull  not  less 
than  such  breadth,  so,  however,  that  the  light  need  not  be 
carried  at  a  greater  height  above  the  hull  than  forty  feet, 
a  bright  white  light,  so  constructed  as  to  show  an  un- 
broken light  over  an  arc  of  the  horizon  of  twenty  points 
of  the  compass,  so  fixed  as  to  throw  the  light  ten  points 
on  each  side  of  the  vessel,  namely,  from  right  ahead  to  two 
points  abaft  the  beam  on  either  side,  and  of  such  a  char- 
acter as  to  be  visible  at  a  distance  of  at  least  five  miles. 

(b)  On  the  starboard  side  a  green  light  so  constructed 
as  to  show  an  unbroken  light  over  an  arc  of  the  horizon  of 
ten  points  of  the  compass,  so  fixed  as  to  throw  the  light 
from  right  ahead  to  two  points  abaft  the  beam  on  the  star- 
board side,  and  of  such  a  character  as  to  be  visible  at  a 
distance  of  at  least  two  miles. 

(c)  On  the  port  side  a  red  light  so  constructed  as  to 
show  an  unbroken  light  over  an  arc  of  the  horizon  of  ten 
points  of  the  compass,  so  fixed  as  to  throw  the  light  from 
right  ahead  to  two  points  abaft  the  beam  on  the  port  side, 


428  STATUTES   REGULATING   NAVIGATION  (Appdx. 

and  of  such  a  character  as  to  be  visible  at  a  distance  of  at 
least  two  miles. 

(d)  The  said  green  and  red  side-lights  shall  be  fitted 
with  inboard  screens  projecting  at  least  three  feet  forward 
from  the  light,  so  as  to  prevent  these  lights  from  being  seen 
across  the  bow. 

(e)  A  steam-vessel  when  under  way  may  carry  an  addi- 
tional white  light  similar  in  construction  to  the  light  men- 
tioned in  subdivision  (a).  These  two  lights  shall  be  so 
placed  in  line  with  the  keel  that  one  shall  be  at  least  fifteen 
feet  higher  than  the  other,  and  in  such  a  position  with  ref- 
erence to  each  other  that  the  lower  light  shall  be  forward 
of  the  upper  one.  The  vertical  distance  between  these 
lights  shall  be  less  than  the  horizontal  distance.  (Act  Aug. 
19,  1890,  c.  802,  §  1,  26  Stat.  321,  U.  S.  Comp.  St.  §  7838.) 

Art  3.  Steam  vessel  towing  another  vessel  or  vessels — 
A  steam-vessel  when  towing  another  vessel  shall,  in  addi- 
tion to  her  side-lights,  carry  two  bright  white  lights  in  a 
vertical  line  one  over  the  other,  not  less  than  six  feet  apart, 
and  when  towing  more  than  one  vessel  shall  carry  an  ad- 
ditional bright  white  light  six  feet  above  or  below  such 
light,  if  the  length  of  the  tow  measuring  from  the  stern  of 
the  towing  vessel  to  the  stern  of  the  last  vessel  towed  ex- 
ceeds six  hundred  feet.  Each  of  these  lights  shall  be  of 
the  same  construction  and  character,  and  shall  be  carried 
in  the  same  position  as  the  white  light  mentioned  in  arti- 
cle two  (a),  excepting  the  additional  light,  which  may  be 
carried  at  a  height  of  not  less  than  fourteen  feet  above  the 
hull. 

Such  steam-vessel  may  carry  a  small  white  light  abaft 
the  funnel  or  aftermast  for  the  vessel  towed  to  steer  by, 
but  such  light  shall  not  be  visible  forward  of  the  beam. 
(Act  Aug.  19,  1890,  c.  802,  §  1,  26  Stat.  321,  U.  S.  Comp. 
St.  §  7839.) 

Art.  4.  Vessel  not  under  control,  and  telegraphic  cable 
vessel — (a)  A  vessel  which  from  any  accident  is  not  under 


Appd.X.)  INTERNATIONAL   RULES  429 

command  shall  carry  at  the  same  height  as  a  white  light 
mentioned  in  article  two  (a),  where  they  can  best  be  seen, 
and  if  a  steam-vessel  in  lieu  of  that  light,  two  red  lights, 
in  a  vertical  line  one  over  the  other,  not  less  than  six  feet 
apart,  and  of  such  a  character  as  to  be  visible  all  around 
the  horizon  at  a  distance  of  at  least  two  miles;  and  shall 
by  day  carry  in  a  vertical  line  one  over  the  other,  not  less 
than  six  feet  apart,  where  they  can  best  be  seen,  two  black 
balls  or  shapes,  each  two  feet  in  diameter. 

(b)  A  vessel  employed  in  laying  or  in  picking  up  a  tel- 
egraph cable  shall  carry  in  the  same  position  as  the  white 
light  mentioned  in  article  two  (a),  and  if  a  steam-vessel  in 
lieu  of  that  light,  three  lights  in  a  vertical  line  one  over 
the  other  not  less  than  six  feet  apart.  The  highest  and 
lowest  of  these  lights  shall  be  red,  and  the  middle  light 
shall  be  white,  and  they  shall  be  of  such  a  character  as  to 
be  visible  all  around  the  horizon,  at  a  distance  of  at  least 
two  miles.  By  day  she  shall  carry  in  a  vertical  line,  one 
over  the  other,  not  less  than  six  feet  apart,  where  they  can 
best  be  seen,  three  shapes  not  less  than  two  feet  in  diam- 
eter, of  which  the  highest  and  lowest  shall  be  globular  in 
shape  and  red  in  color,  and  the  middle  one  diamond  in 
shape  and  white. 

(c)  The  vessels  referred  to  in  this  article,  when  not  mak- 
ing way  through  the  water,  shall  not  carry  the  side-lights, 
but  when  making  way  shall  carry  them. 

(d)  The  lights  and  shapes  required  to  be  shown  by  this 
article  are  to  be  taken  by  other  vessels  as  signals  that  the 
vessel  showing  them  is  not  under  command  and  can  not 
therefore  get  out  of  the  way. 

These  signals  are  not  signals  of  vessels  in  distress  and 
requiring  assistance.  Such  signals  are  contained  in  article 
thirty-one.  (Act  Aug.  19,  1890,  c.  802,  §  1,  26  Stat.  322,  U. 
S.  Comp.  St.  §  7840.) 

Art.  5.  Sailing  vessel  under  way  and  vessel  in  tow — A 
sailing  vessel  under  way  and  any  vessel  being  towed  shall 


430  STATUTES    REGULATING   NAVIGATION  (Appdx. 

carry  the  same  lights  as  are  prescribed  by  article  two  for  a 
steam-vessel  under  way  with  the  exception  of  the  white 
lights  mentioned  therein,  which  they  shall  never  carry. 
(Act  Aug.  19,  1890,  c.  802,  §  1,  26  Stat.  322,  U.  S.  Comp. 
St.  §  7841.) 

Art.  6.  Small  vessels  under  way  in  bad  weather — When- 
ever, as  in  the  case  of  small  vessels  under  way  during  bad 
weather,  the  green  and  red  side-lights  can  not  be  fixed, 
these  lights  shall  be  kept  at  hand,  lighted  and  ready  for  use ; 
♦  and  shall,  on  the  approach  of  or  to  other  vessels,  be  ex- 
hibited on  their  respective  sides  in  sufficient  time  to  pre- 
vent collision,  in  such  manner  as  to  make  them  most  visi- 
ble, and  so  that  the  green  light  shall  not  be  seen  on  the 
port  side  nor  the  red  light  on  the  starboard  side,  nor,  if 
practicable,  more  than  two  points  abaft  the  beam  on  their 
respective  sides. 

To  make  the  use  of  these  portable  lights  more  certain 
and  easy  the  lanterns  containing  them  shall  each  be  painted 
outside  with  the  color  of  the  light  they  respectively  con- 
tain, and  shall  be  provided  with  proper  screens.  (Act  Aug. 
19,  1890,  c.  802,  §  1,  26  Stat.  322,  U.  S.  Comp.  St.  §  7842.) 

Art.  7.  Small  vessels  and  rowing  boats — Steam  vessels 
of  less  than  forty,  and  vessels  under  oars  or  sails  of  less 
than  twenty  tons  gross  tonnage,  respectively,  and  rowing 
boats,  when  under  way,  shall  not  be  required  to  carry  the 
lights  mentioned  in  article  two  (a),  (b),  and  (c),  but  if  they 
do  not  carry  them  they  shall  be  provided  with  the  follow- 
ing lights : 

First.  Steam  vessels  of  less  than  forty  tons  shall  carry — 

(a)  In  the  fore  part  of  the  vessel,  or  on  or  in  front  of 
the  funnel,  where  it  can  best  be  seen,  and  at  a  height  above 
the  gunwale  of  not  less  than  nine  feet,  a  bright  white  light 
constructed  and  fixed  as  prescribed  in  article  two  (a),  and 
of  such  a  character  as  to  be  visible  at  a  distance  of  at  least 
two  miles. 


Appdx.)  INTERNATIONAL   RULES  431 

(b)  Green  and  red  side-lights  constructed  and  fixed  as 
prescribed  in  article  two  (b)  and  (c),  and  of  such  a  char- 
acter as  to  be  visible  at  a  distance  of  at  least  one  mile,  or 
a  combined  lantern  showing  a  green  light  and  a  red  light 
from  right  ahead  to  two  points  abaft  the  beam  on  their  re- 
spective sides.  Such  lanterns  shall  be  carried  not  less  than 
three  feet  below  the  white  light. 

Second.  Small  steamboats,  such  as  are  carried  by  sea- 
going vessels,  may  carry  the  white  light  at  a  less  height 
than  nine  feet  above  the  gunwale,  but  it  shall  be  carried 
above  the  combined  lantern  mentioned  in  subdivision  one  (b). 

Third.  Vessels  under  oars  or  sails  of  less  than  twenty 
tons  shall  have  ready  at  hand  a  lantern  with  a  green  glass 
on  one  side  and  a  red  glass  on  the  other,  which,  on  the  ap- 
proach of  or  to  other  vessels,  shall  be  exhibited  in  sufficient 
time  to  prevent  collision,  so  that  the  green  light  shall  not 
be  seen  on  the  port  side  nor  the  red  light  on  the  starboard 
side. 

Fourth.  Rowing  boats,  whether  under  oars  or  sail,  shall 
have  ready  at  hand  a  lantern  showing  a  white  light  which 
shall  be  temporarily  exhibited  in  sufficient  time  to  prevent 
collision. 

The  vessels  referred  to  in  this  article  shall  not  be  obliged 
to  carry  the  lights  prescribed  by  article  four  (a)  and  article 
eleven,  last  paragraph.  (Act  Aug.  19,  1890,  c.  802,  §  1,  26 
Stat.  322,  amended  Act  May  28,  1894,  c.  83,  28  Stat.  82,  U. 
S.  Comp.  St.  §  7843.) 

.  Art.  8.  Pilot-vessel  on  and  off  pilotage  duty — Pilot  ves- 
sels when  engaged  on  their  station  on  pilotage  duty  shall 
not  show  the  lights  required  for  other  vessels,  but  shall 
carry  a  white  light  at  the  masthead,  visible  all  around  the 
horizon,  and  shall  also  exhibit  a  flare-up  light  or  flare-up 
lights  at  short  intervals,  which  shall  never  exceed  fifteen 
minutes. 

On  the  near  approach  of  or  to  other  vessels  they  shall 
have  their  side-lights  lighted,  ready  for  use,  and  shall  flash 


432  STATUTES   REGULATING  NAVIGATION  (Appdx. 

or  show  them  at  short  intervals,  to  indicate  the  direction  in 
which  .they  are  heading-,  but  the  green  light  shall  not  be 
shown  on  the  port  side,  nor  the  red  light  on  the  starboard 
side. 

A  pilot-vessel  of  such  a  class  as  to  be  obliged  to  go  along- 
side of  a  vessel  to  put  a  pilot  on  board  may  show  the  white 
light  instead  of  carrying  it  at  the  masthead,  and  may,  in- 
stead of  the  colored  lights  above  mentioned,  have  at  hand, 
ready  for  use,  a  lantern  with  a  green  glass  on  the  one  side 
and  a  red  glass  on  the  other,  to  be  used  as  prescribed  above. 

Pilot-vessels  when  not  engaged  on  their  station  on  pilot- 
age duty  shall  carry  lights  similar  to  those  of  other  vessels 
of  their  tonnage.  (Act  Aug.  19,  1890,  c.  802,  §  1,  26  Stat. 
323,  U.  S.  Comp.  St.  §  7844.) 

Steam  pilot  vessel — A  steam  pilot  vessel,  when  engaged 
on  her  station  on  pilotage  duty  and  in  waters  of  the  Unit- 
ed States,  and  not  at  anchor,  shall,  in  addition  to  the  lights 
required  for  all  pilot  boats,  carry  at  a  distance  of  eight  feet 
below  her  white  masthead  light  a  red  light,  visible  all 
around  the  horizon  and  of  such  a  character  as  to  be  visible 
on  a  dark  night  with  a  clear  atmosphere  at  a  distance  of  at 
least  two  miles,  and  also  the  colored  side  lights  required  to 
be  carried  by  vessels  when  under  way. 

When  engaged  on  her  station  on  pilotage  duty  and  in 
waters  of  the  United  States,  and  at  anchor,  she  shall  carry 
in  addition  to  the  lights  required  for  all  pilot  boats  the  red 
light  above  mentioned,  but  not  the  colored  side  lights. 

When  not  engaged  on  her  station  on  pilotage  duty,  she 
shall  carry  the  same  lights  as  other  steam  vessels.  (Act 
Feb.  19,  1900,  c.  22,  §  1,  31  Stat.  30,  U.  S.  Comp.  St.  §  7845.) 

Construction  of  preceding  provision — This  Act  shall  be 
construed  as  supplementary  to  article  eight  of  the  Act  ap- 
proved June  seventh,  eighteen  hundred  and  ninety-seven, 
entitled  "An  Act  to  adopt  regulations  for  preventing  colli- 
sions upon  certain  harbors,  rivers,  and  inland  waters  of  the 
United   States,"  and   to  article  eight  of  an  Act  approved 


Appdx.)  INTERNATIONAL   RULES  433 

August  nineteenth,  eighteen  hundred  and  ninety,  entitled 
"An  Act  to  adopt  regulations  for  preventing  collisions  at 
sea."  (Act  Feb,  19,  1900,  c.  22,  §  2,  31  Stat.  31,  U.  S.  Comp. 
St.  §  7846.) 

Art.  9.  Fishing  vessels  and  fishing  boats — Fishing  ves- 
sels and  fishing  boats,  when  under  way  and  when  not  re- 
quired by  this  article  to  carry  or  show  the  lights  herein- 
after specified,  shall  carry  or  show  the  lights  prescribed  for 
vessels  of  their  tonnage  under  way. 

(a)  Open  boats,  by  which  is  to  be  understood  boats  not 
protected  from  the  entry  of  sea  water  by  means  of  a  con- 
tinuous deck,  when  engaged  in  any  fishing  at  night,  with 
outlying  tackle  extending  not  more  than  one  hundred  and 
fifty  feet  horizontally  from  the  boat  into  the  seaway,  shall 
carry  one  all-round  white  light. 

Open  boats,  when  fishing  at  night,  with  outlying  tackle 
extending  more  than  one  hundred  and  fifty  feet  horizontal- 
ly from  the  boat  into  the  seaway,  shall  carry  one  all-around 
white  light,  and  in  addition,  on  approaching  or  being  ap- 
proached by  other  vessels,  shall  show  a  second  white  light 
at  least  three  feet  below  the  first  light  and  at  a  horizontal 
distance  of  at  least  five  feet  away  from  it  in  the  direction 
in  which  the  outlying  tackle  is  attached. 

(b)  Vessels  and  boats,  except  open  boats  as  defined  in 
subdivision  (a),  when  fishing  with  drift  nets,  shall,  so  long 
as  the  nets  are  wholly  or  partly  in  the  water,  earn'  two 
white  lights  where  they  can  best  be  seen.  Such  lights  shall 
be  placed  so  that  the  vertical  distance  between  them  shall 
be  not  less  than  six  feet  and  not  more  than  fifteen  feet,  and 
so  that  the  horizontal  distance  betAveen  them,  measured  in 
a  line  with  the  keel,  shall  be  not  less  than  five  feet  and  not 
more  than  ten  feet.  The  lower  of  these  two  lights  shall  be 
in  the  direction  of  the  nets,  and  both  of  them  shall  be  of 
such  a  character  as  to  show  all  around  the  horizon,  and  to 
be  visible  at  a  distance  of  not  less  than  three  miles. 

Within  the  Mediterranean   Sea  and  in  the  seas  bordering 
Hughes,Adm.(2d  Ed.)— 2S 


434  STATUTES    REGULATING   NAVIGATION  (Appdx. 

the  coasts  of  Japan  and  Korea  sailing  fishing  vessels  of  less 
than  twenty  tons  gross  tonnage  shall  not  be  obliged  to 
carry  the  lower  of  these  two  lights.  Should  they,  however, 
not  carry  it,  they  shall  show  in  the  same  position  (in  the 
direction  of  the  net  or  gear)  a  white  light,  visible  at  a  dis- 
tance of  not  less  than  one  sea  mile,  on  the  approach  of  ot- 
to other  vessels. 

(c)  Vessels  and  boats,  except  open  boats  as  defined  in 
subdivision  (a),  when  line  fishing  with  their  lines  out  and 
attached  to  or  hauling  their  lines,  and  when  not  at  anchor 
or  stationary  within  the  meaning  of  subdivision  (h),  shall 
carry  the  same  lights  as  vessels  fishing  with  drift  nets. 
When  shooting  lines,  or  fishing  with  towing  lines,  they 
shall  carry  the  lights  prescribed  for  a  steam  or  sailing  ves- 
sel under  way,  respectively. 

Within  the  Mediterranean  Sea  and  in  the  seas  bordering 
the  coasts  of  Japan  and  Korea  sailing  fishing  vessels  of  less 
than  twenty  tons  gross  tonnage  shall  not  be  obliged  to  car- 
ry the  lower  of  these  two  lights.  Should  they,  however,  not 
carry  it,  they  shall  show  in  the  same  position  (in  the  direc- 
tion of  the  lines)  a  white  light,  visible  at  a  distance  of  not 
less  than  one  sea  mile  on  the  approach  of  or  to  other  ves- 
sels. 

(d)  Vessels  when  engaged  in  trawling,  by  which  is 
meant  the  dragging  of  an  apparatus  along  the  bottom  of 
the  sea — ■ 

First.  If  steam  vessels,  shall  carry  in  the  same  position 
as  the  white  light  mentioned  in  article  two  (a)  a  tri-col- 
ored  lantern  so  constructed  and  fixed  as  to  show  a  white 
light  from  right  ahead  to  two  points  on  each  bow,  and  a 
green  light  and  a  red  light  over  an  arc  of  the  horizon  from 
two  points  on  each  bow  to  two  points  abaft  the  beam  on  the 
starboard  and  port  sides,  respectively;  and  not  less  than 
six  nor  more  than  twelve  feet  below  the  tri-colored  lan- 
tern a  white  light  in  a  lantern,  so  constructed  as  to  show 
a  clear,  uniform,  and  unbroken  light  all  around  the  horizon. 


Appdx.)  INTERNATIONAL   RULES  435 

Second.  If  sailing  vessels,  shall  carry  a  white  light  in  a 
lantern,  so  constructed  as  to  show  a  clear,  uniform/  and 
unbroken  light  all  around  the  horizon,  and  shall  also,  on 
the  approach  of  or  to  other  vessels,  show  where  it  can  best 
be  seen  a  white  flare-up  light  or  torch  in  sufficient  time  to 
prevent  collision. 

All  lights  mentioned  in  subdivision  (d)  first  and  second 
shall  be  visible  at  a  distance  of  at  least  two  miles. 

(e)  Oyster  dredges  and  other  vessels  fishing  with  dredge 
nets  shall  carry  and  show  the  same  lights  as  trawlers. 

(f)  Fishing  vessels  and  fishing  boats  may  at  any  time 
use  a  flare-up  light  in  addition  to  the  lights  which  they 
are  by  this  article  required  to  carry  and  show,  and  they  may 
also  use  working  lights. 

(g)  Every  fishing  vessel  and  every  fishing  boat  under 
one  hundred  and  fifty  feet  in  length,  when  at  anchor,  shall 
exhibit  a  white  light  visible  all  around  the  horizon  at  a 
distance  of  at  least  one  mile. 

Every  fishing  vessel  of  one  hundred  and  fifty  feet  in 
length  or  upward,  when  at  anchor,  shall  exhibit  a  white 
light  visible  all  around  the  horizon  at  a  distance  of  at  least 
one  mile,  and  shall  exhibit  a  second  light  as  provided  for 
vessels  of  such  length  by  article  eleven. 

Should  any  such  vessel,  whether  under  one  hundred  and 
fifty  feet  in  length  or  of  one  hundred  and  fifty  feet  in  length 
or  upward,  be  attached  to  a  net  or  other  fishing  gear,  she 
shall  on  the  approach  of  other  vessels  show  an  additional 
white  light  at  least  three  feet  below  the  anchor  light,  and 
at  a  horizontal  distance  of  at  least  five  feet  away  from  it 
in  the  direction  of  the  net  or  gear. 

(h)  If  a  vessel  or  boat  when  fishing  becomes  stationary 
in  consequence  of  her  gear  getting  fast  to  a  rock  or  other 
obstruction,  she  shall  in  daytime  haul  down  the  day  signal 
required  by  subdivision  (k)  ;  at  night  show  the  light  or 
lights  prescribed  for  a  vessel  at  anchor;  and  during  fog. 
mist,  falling  snow,  or  heavy  rain  storms  make  the  signal 


436  STATUTES   REGULATING   NAVIGATION  (Appdx. 

prescribed  for  a  vessel  at  anchor.  (See  subdivision  (d)  and 
the  1-ast  paragraph  of  article  fifteen.) 

(i)  In  fog,  mist,  falling  snow,  or  heavy  rain  storms,  drift- 
net  vessels  attached  to  their  nets,  and  vessels  when  trawl- 
ing, dredging,  or  fishing  with  any  kind  of  drag  net,  and 
vessels  line  fishing  with  their  lines  out,  shall,  if  of  twenty 
tons  gross  tonnage  or  upward,  respectively,  at  intervals  of 
not  more  than  one  minute  make  a  blast;  if  steam  vessels, 
with  the  whistle  or  siren,  and  if  sailing  vessels,  with  the 
foghorn,  each  blast  to  be  followed  by  ringing  the  bell. 
Fishing  vessels  and  boats  of  less  than  twenty  tons  gross 
tonnage  shall  not  be  obliged  to  give  the  above-mentioned 
signals ;  but  if  they  do  not,  they  shall  make  some  other 
efficient  sound  signal  at  intervals  of  not  more  than  one 
minute. 

(k)  All  vessels  or  boats  fishing  with  nets  *or  lines  or 
trawls,  when  under  way,  shall  in  daytime  indicate  their  oc- 
cupation to  an  approaching  vessel  by  displaying  a  basket 
or  other  efficient  signal  where  it  can  best  be  seen.  If  ves- 
sels or  boats  at  anchor  have  their  gear  out,  they  shall,  on 
the  approach  of  other  vessels,  show  the  same  signal  on  the 
side  on  which  those  vessels  can  pass. 

The  vessels  required  by  this  article  to  carry  or  show  the 
lights  hereinbefore  specified  shall  not  be  obliged  to  carry 
the  lights  prescribed  by  article  four  fa)  and  the  last  para- 
graph of  article  eleven.  (Act  Aug.  19,  1890,  c.  802,  §  1, 
26  Stat.  323,  amended  Act  May  28,  1894,  c.  83,  28  Stat.  82, 
and  Act  Jan.  19,  1907,  c.  300,  §  1,  34  Stat.  850,  U.  S.  Comp. 
St.  §  7847.) 

Art.  10.  Vessel  overtaken  by  another — A  vessel  which  is 
being  overtaken  by  another  shall  show  from  her  stern  to 
such  last  mentioned  vessel  a  white  light  or  a  flare-up  light. 

The  white  light  required  to  be  shown  by  this  article  may 
be  fixed  and  carried  in  a  lantern,  but  in  such  case  the  lan- 
tern shall  be  so  constructed,  fitted,  and  screened  that  it 
shall  throw  an  unbroken  light  over  an  arc  of  the  horizon  of 


Appdx.)  INTERNATIONAL   RULES  437 

twelve  points  of  the  compass,  namely,  for  six  points  from 
right  aft  on  each  side  of  the  vessel,  so  as  to  be  visible  at  a 
distance  of  at  least  one  mile.  Such  light  shall  be  carried  as 
nearly  as  practicable  on  the  same  level  as  the  side-lights. 
(Act  Aug.  19,  1890,  c.  802,  §  1,  26  Stat.  324,  U.  S.  Comp. 
St.  §  7848.) 

Art.  11.  Vessel  at  anchor  or  aground  in  or  near  fair-way 
— A  vessel  under  one  hundred  and  fifty  feet  in  length,  when 
at  anchor,  shall  carry  forward,  where  it  can  best  be  seen, 
but  at  a  height  not  exceeding  twenty  feet  above  the  hull, 
a  white  light  in  a  lantern  so  constructed  as  to  show  a  clear, 
uniform,  and  unbroken  light  visible  all  around  the  horizon 
at  a  distance  of  at  least  one  mile. 

A  vessel  of  one  hundred  and  fifty  feet  or  upwards  in 
length,  when  at  anchor,  shall  carry  in  the  forward  part  of 
the  vessel,  at  a  height  of  not  less  than  twenty  and  not  ex- 
ceeding forty  feet  above  the  hull,  one  such  light,  and  at  or 
near  the  stern  of  the  vessel,  and  at  such  a  height  that  it 
shall  be  not  less  than  fifteen  feet  lower  than  the  forward 
light,  another  such  light. 

The  length  of  a  vessel  shall  be  deemed  to  be  the  length 
appearing  in  her  certificate  of  registry. 

A  vessel  aground  in  or  near  a  fair-way  shall  carry  the 
above  light  or  lights  and  the  two  red  lights  prescribed  by  ar- 
ticle four  (a).  (Act  Aug.  19,  1890,  c.  802,  §  1,  26  Stat." 324, 
U.  S.  Comp.  St.  §  7849.) 

Art.  12.  Additional  flare-up  light  or  detonating  signal — 
Every  vessel  may,  if  necessary  in  order  to  attract  attention, 
in  addition  to  the  lights  which  she  is  by  these  rules  requir- 
ed to  carry,  show  a  flare-up  light  or  use  any  detonating 
signal  that  can  not  be  mistaken  for  a  distress  signal.  (Act 
Aug.  19,  1890,  c.  802,  §  1,  26  Stat.  325,  U.  S.  Comp.  St.  § 
7850.) 

Art.  13.  Ships  of  war  and  convoys — Nothing  in  these 
rules  shall  interfere  with  the  operation  of  any  special  rules 
made   by   the   Government  of  any   nation   with  respect  to 


438  STATUTES   REGULATING  NAVIGATION  (Appdx. 

additional  station  and  signal-lights  for  two  or  more  ships 
of  war  or  for  vessels  sailing  under  convoy,  or  with  the  ex- 
hibition of  recognition  signals  adopted  by  ship-owners, 
which  have  been  authorized  by  their  respective  Govern- 
ments and  duly  registered  and  published.  (Act  Aug.  19, 
1890,  c.  802,  §  1,  26  Stat  325,  U.  S.  Comp.  St.  §  7851.) 

Art.  14.  Steam  vessels  under  sail  only — A  steam-vessel 
proceeding  under  sail  only  but  having  her  funnel  up,  shall 
carry  in  day-time,  forward,  where  it  can  best  be  seen,  one 
black  ball  or  shape  two  feet  in  diameter.  (Act  Aug.  19, 
1890,  c.  802,  §  1,  26  Stat.  325,  U.  S.  Comp.  St.  §  7852.) 

Sound  Signals  for  Fog,  and  so  Forth 

Art.  15.  Fog  signals — All  signals  prescribed  by  this  ar- 
ticle for  vessels  under  way  shall  be  given : 

First.  By  "steam  vessels"  on  the  whistle  or  siren. 

Second.  By  "sailing  vessels"  and  "vessels  towed"  on  the 
fog  horn. 

The  wrords  "prolonged  blast"  used  in  this  article  shall 
mean  a  blast  of  from  four  to  six  seconds  duration. 

A  steam  vessel  shall  be  provided  with  an  efficient  whistle 
or  siren,  sounded  by  steam  or  by  some  substitute  for  steam, 
so  placed  that  the  sound  may  not  be  intercepted  by  any 
obstruction,  and  with  an  efficient  fog  horn,  to  be  sounded 
by  mechanical  means,  and  also  with  an  efficient  bell.  (In 
all  cases  where  the  rules  require  a  bell  to  be  used  a  drum 
may  be  substituted  on  board  Turkish  vessels,  or  a  gong 
where  such  articles  are  used  on  board  small  seagoing  ves- 
sels.) 

A  sailing  vessel  of  twenty  tons  gross  tonnage  or  upward 
shall  be  provided  with  a  similar  fog  horn  and  bell. 

In  fog,  mist,  falling  snow,  or  heavy  rainstorms,  whether 
by  day  or  night,  the  signals  described  in  this  article  shall 
be  used  as  follows,  namely: 

(a)  A  steam  vessel  having  way  upon  her  shall  sound  at 
intervals  of  not  more  than  two  minutes,  a  prolonged  blast. 


Appdx.)  INTERNATIONAL  RULES  439 

(b)  A  steam  vessel  under  way,  but  stopped,  and  having 
no  way  upon  her,  shall  sound,  at  intervals  of  not  more  than 
two  minutes,  two  prolonged  blasts,  with  an  interval  of 
about  one  second  between. 

(c)  A  sailing  vessel  under  way  shall  sound,  at  intervals 
of  not  more  than  one  minute,  when  on  the  starboard  tack, 
one  blast ;  when  on  the  port  tack,  two  blasts  in  succession, 
and  when  with  the  wind  abaft  the  beam,  three  blasts  in 
succession. 

(d)  A'  vessel  when  at  anchor  shall,  at  intervals  of 
not  more  than  one  minute,  ring  the  bell  rapidly  for  about 
five  seconds. 

(e)  A  vessel  when  towing,  a  vessel  employed  in  laying 
or  in  picking  up  a  telegraph  cable,  and  a  vessel  under  way, 
which  is  unable  to  get  out  of  the  way  of  an  approaching 
vessel  through  being  not  under  command  or  unable  to  ma- 
neuver as  required  by  the  rules,  shall,  instead  of  the  sig- 
nals prescribed  in  subdivisions  (a)  and  (c)  of  this  article, 
at  intervals  of  not  more  than  two  minutes,  sound  three 
blasts  in  succession,  namely :  One  prolonged  blast  follow- 
ed by  two  short  blasts.  A  vessel  towed  may  give  this  sig- 
nal and  she  shall  not  give  any  other. 

Sailing  vessels  and  boats  of  less  than  twenty  tons  gross 
tonnage  shall  not  be  obliged  to  give  the  above-mentioned 
signals,  but,  if  they  do  not,  they  shall  make  some  other 
efficient  sound  signal  at  intervals  of  not  more  than  one  min- 
ute. (Act  Aug.  19,  1890,  c.  802,  §  1,  26  Stat.  325,  amended 
Act  June  10,  1896,  c.  401,  §  1,  29  Stat.  381,  U.  S.  Comp.  St. 
§  7853.) 

Speed  of  Ships  To  be  Moderate  in  Fog,  and  so  Forth 
Art.  16.  Speed  of  vessels  in  fog — Every  vessel  shall,  in  a 
fog,  mist,  falling  snow,  or  heavy  rainstorms,  go  at  a  mod- 
erate speed,  having  careful  regard  to  the  existing  circum- 
stances  and   conditions. 

A  steam  vessel  hearing,  apparently  forward  of  her  beam, 
the  fog  signal  of  a  vessel  the  position  of  which  is  not  as- 


440  STATUTES   REGULATING   NAVIGATION  (Appdx. 

certained  shall,  so  far  as  the  circumstances  of  the  case  ad- 
mit, stop  her  engines,  and  then  navigate  with  caution  until 
danger  of  collision  is  over.  (Act  Aug.  19,  1890,  c.  802,  §  1, 
26  Stat.  326,  U.  S.  Comp.  St.  §  7854.) 

Steering  and  Sailing  Rules 

Preliminary — Risk  of  Collision 
Ascertainment  of  risk  of  collision — Risk  of  collision  can, 
when  circumstances  permit,  be  ascertained  by  carefully 
watching  the  compass  bearing  of  an  approaching  vessel. 
If  the  bearing  does  not  appreciably  change,  such  risk 
should  be  deemed  to  exist.  (Act  Aug.  19,  1890,  c.  802,  § 
1,  26  Stat.  326,  U.  S.  Comp.  St.  §  7855.) 

Art.  17.  Rules  of  avoidance  of  risk;  sailing  vessels  ap- 
proaching one  another — When  two  sailing  vessels  are  ap- 
proaching one  another,  so  as  to  involve  risk  of  collision, 
one  of  them  shall  keep  out  of  the  way  of  the  other,  as  fol- 
lows, namely : 

(a)  A  vessel  which  is  running  free  shall  keep  out  of  the 
way  of  a  vessel  which  is  close-hauled. 

(b)  A  vessel  which  is  close-hauled  on  the  port  tack  shall 
keep  out  of  the  way  of  a  vessel  which  is  close-hauled  on 
the  starboard  tack. 

(c)  When  both  are  running  free,  with  the  wind  on  dif- 
ferent sides,  the  vessel  which  has  the  wind  on  the  port  side 
shall  keep  out  of  the  way  of  the  other. 

(d)  When  both  are  running  free,  with  the  wind  on  the 
same  side,  the  vessel  which  is  to  the  windward  shall  keep 
out  of  the  way  of  the  vessel  which  is  to  leeward. 

(e)  A  vessel  which  has  the  wind  aft  shall  keep  out  of 
the  way  of  the  other  vessel.  (Act  Aug.  19,  1890,  c.  802,  § 
1,  26  Stat.  326,  U.  S.  Comp.  St.  §  7856.) 

Art.  18.  Steam  vessels  meeting  end  on — When  two 
steam-vessels  are  meeting  end  on,  or  nearly  end  on,  so  as 
to  involve  risk  of  collision,  each  shall  alter  her  course  to 


Appdx.)  INTERNATIONAL   RULES  441 

starboard,  so  that  each  may  pass  on  the  port  side  of  the 
other. 

This  article  only  applies  to  cases  where  vessels  are  meet- 
ing end  on,  or  nearly  end  on,  in  such  a  manner  as  to  in- 
volve risk  of  collision,  and  does  not  apply  to  two  vessels 
which  must,  if  both  keep  on  their  respective  courses,  pass 
clear  of  each  other. 

The  only  cases  to  which  it  does  apply  are  when  each  of 
the  two  vessels  is  end  on,  or  nearly  end  on,  to  the  other; 
in  other  words,  to  cases  in  which,  by  day,  each  vessel  sees 
the  masts  of  the  other  in  a  line,  or  nearly  in  a  line,  with 
her  own ;  and  by  night,  to  cases  in  which  each  vessel  is  in 
such  a  position  as  to  see  both  the  side-lights  of  the  other. 

It  does  not  apply  by  day  to  cases  in  which  a  vessel  sees 
another  ahead  crossing  her  own  course;  or  by  night,  to 
cases  where  the  red  light  of  one  vessel  is  opposed  to  the 
red  light  of  the  other,  or  where  the  green  light  of  one  ves- 
sel is  opposed  to  the  green  light  of  the  other  or  where  a 
red  light  without  a  green  light,  or  a  green  light  without  a 
red  light,  is  seen  ahead,  or  where  both  green  and  red  lights 
are  seen  anywhere  but  ahead.  (Act  Aug.  19,  1890,  c.  802, 
§  1,  26  Stat.  326,  U.  S.  Comp.  St.  §  7857.) 

Art.  19.  Steam  vessels  crossing — When  two  steam-ves- 
sels are  crossing,  so  as  to  involve  risk  of  collision,  the  ves- 
sel which  has  the  other  on  her  own  starboard  side  shall 
keep  out  of  the  way  of  the  other.  (Act  Aug.  19,  1890,  c. 
802,  §  1,  26  Stat.  327,  U.  S.  Comp.  St.  §  7858.) 

Art.  20.  Steam  and  sailing  vessels  meeting — When  a 
steam-vessel  and  a  sailing  vessel  are  proceeding  in  such 
directions  as  to  involve  risk  of  collision,  the  steam-vessel 
shall  keep  out  of  the  way  of  the  sailing-vessel.  (Act  Aug. 
19,  1890,  c.  802,  §  1,  26  Stat.  327,  U.  S.  Comp.  St.  §  7859.) 

Art.  21.  What  vessel  shall  keep  her  course — Where,  by 
any  of  these  rules,  one  of  two  vessels  is  to  keep  out  of  the 
way  the  other  shall  keep  her  course  and  speed. 

Note. — When,   in  consequence  of  thick  weather  or  oth- 


412  STATUTES   REGULATING   NAVIGATION  (Appdx. 

er  causes,  such  vessel  finds  herself  so  close  that  collision 
can  not  be  avoided  by  the  action  of  the  giving-way  vessel 
alone,  she  also  shall  take  such  action  as  will  best  aid  to 
avert  collision.  (See  articles  twenty-seven  and  twenty- 
nine.)  (Act  Aug.  19,  1890,  c.  802,  §  1,  26  Stat.  327,  amend- 
ed Act  May  28,' 1894,  c.  83,  28  Stat.  82,  U.  S.  Comp.  St.  § 
7860.) 

Art.  22.  Vessel  to  avoid  crossing  ahead — Every  vessel 
which  is  directed  by  these  rules  to  keep  out  of  the  way  of 
another  vessel  shall,  if  the  circumstances  of  the  case  admit, 
avoid  crossing  ahead  of  the  other.  (Act  Aug.  19,  1890,  c. 
802,  §  1,  26  Stat.  327,  U.  S.  Comp.  St.  §  7861.) 

Art.  23.  Steam  vessel  to  slacken  speed — Every  steam- 
vessel  which  is  directed  by  these  rules  to  keep  out  of  the 
way  of  another  vessel  shall,  on  approaching  her,  if  neces- 
sary, slacken  her  speed  or  stop  or  reverse.  (Act  Aug.  19, 
1890,  c.  802,  §  1,  26  Stat.  327,  U.  S.  Comp.  St.  §  7862.) 

Art.  24.  Overtaking  vessel  to  keep  out  of  the  way ;  defini- 
tion of  "overtaking  vessel" — Notwithstanding  anything 
contained  in  these  rules  every  vessel,  overtaking  any  other, 
shall  keep  out  of  the  way  of  the  overtaken  vessel. 

Every  vessel  coming  up  with  another  vessel  from  any  di- 
rection more  than  two  points  abaft  her  beam,  that  is,  in 
such  a  position,  with  reference  to  the  vessel  which  she  is 
overtaking  that  at  night  she  would  be  unable  to  see  either 
of  that  vessel's  side  lights,  shall  be  deemed  to  be  an  over- 
taking vessel ;  and  no  subsequent  alteration  of  the  bearing 
between  the  two  vessels  shall  make  the  overtaking  vessel 
a  crossing  vessel  within  the  meaning  of  these  rules,  or  re- 
lieve her  of  the  duty  of  keeping  clear  of  the  overtaken  ves- 
sel until  she  is  finally  past  and  clear. 

As  by  day  the  overtaking  vessel  can  not  always  know 
with  certainty  whether  she  is  forward  of  or  abaft  this  di- 
rection from  the  other  vessel  she  should,  if  in  doubt,  as- 
sume that  she  is  an  overtaking  vessel  and  keep  out  of  the 


Appdx.)  INTERNATIONAL   RULES  |43 

way.  (Act  Aug.  19,  1890,  c.  802,  §  1,  26  Stat.  327,  U.  S. 
Comp.  St.  §  7863.) 

Art.  25.  Steam-vessel  in  narrow  channel — In  narrow 
channels  every  steam-vessel  shall,  when  it  is  safe  and  prac- 
ticable, keep  to  that  side  of  the  fair-way  or  mid-channel 
which  lies  on  the  starboard  side  of  such  vessel.  (Act  Aug. 
19,  1890,  c.  802,  §  1,  26  Stat.  327,  U.  S.  Comp.  St.  §  7864.) 

Art.  26.  Sailing-vessels  under  way  to  avoid  fishing  boats; 
fishing  boats  not  to  obstruct  fair-ways — Sailing  vessels  un- 
der way  shall  keep  out  of  the  way  of  sailing  vessels  or 
boats  fishing  with  nets,  or  lines,  or  trawls.  This  rule  shall 
not  give  to  any  vessel  or  boat  engaged  in  fishing  the  right 
of  obstructing  a  fair-way  used  by  vessels  other  than  fish- 
ing vessels  or  boats.  (Act  Aug.  19,  1890,  c.  802,  §  1,  26 
Stat.  327,  U.  S.  Comp.  St.  §  7865.) 

Art.  27.  Obedience  to  and  construction  of  rules — In  obey- 
ing and  construing  these  rules  due  regard  shall  be  had  to 
all  dangers  of  navigation  and  collision,  and  to  any  special 
circumstances  which  may  render  a  departure  from  the 
above  rules  necessary  in  order  to  avoid  immediate  danger. 
(Act  Aug.  19,  1890,  "c.  802,  §  1,  26  Stat.  327,  U.  S.  Comp. 
St.  §  7866.) 

Sound  Signals  for  Vessels  in  Sight  of  One  Another 

Art.  28.  Meaning  of  "short  blast";  steam-vessel  under 
way  to  signal  course  by  whistle;  meaning  of  one,  two, 
three  "short  blasts" — The  words  "short  blast"  used  in  this 
article  shall  mean  a  blast  of  about  one  second's  duration. 

When  vessels  are  in  sight  of  one  another,  a  steam-ves- 
sel under  way,  in  taking  any  course  authorized  or  required 
by  these  rules,  shall  indicate  that  course  by  the  following 
signals  on  her  whistle  or  siren,  namely : 

One  short  blast  to  mean,  "I  am  directing  my  course  to 
starboard." 

Two  short  blasts  to  mean,  "I  am  directing  my  course  to 
port." 


444  STATUTES   REGULATING   NAVIGATION  (Appdx. 

Three  short  blasts  to  mean,  "My  engines  are  going  at 
full  speed  astern."  (Act  Aug.  19,  1890,  c.  802,  §  1,  26  Stat. 
328,  U.  S.  Comp.  St.  §  7867.) 

No  Vessel,  Under  any  Circumstances,  to  Neglect 
Proper  Precautions 

Art.  29.  Vessels  not  to  neglect  precautions — Nothing  in 
these  rules  shall  exonerate  any  vessel  or  the  owner  or  mas- 
ter or  crew  thereof,  from  the  consequences  of  any  neglect 
to  carry  lights  or  signals,  or  of  any  neglect  to  keep  a  prop- 
er lookout,  or  of  the  neglect  of  any  precaution  which  may 
be  required  by  the  ordinary  practice  of  seamen,  or  by  the 
special  circumstances  of  the  case.  (Act  Aug.  19,  1890,  c. 
802,  §  1,  26  Stat.  328,  U.  S.  Comp.  St.  §  7868.) 

Reservation  oe  Rules  for  Harbors  and  Inland  Navi- 
gation 

Art.  30.  Reservation  of  rules  for  harbors,  rivers,  and  in- 
land waters — Nothing  in  these  rules  shall  interfere  with 
the  operation  of  a  special  rule,  duly  made  by  local  authori- 
ty, relative  to  the  navigation  of  any  harbor,  river,  or  inland 
waters.  (Act  Aug.  19,  1890,  c.  802,  §  1,  26  Stat.  328,  U.  S. 
Comp.  St.  §  7869.) 

Distress  Signals 

Art.  31.  Distress  signals,  in  day  time;  at  night — When  a 
vessel  is  in  distress  and  requires  assistance  from  other  ves- 
sels or  from  the  shore  the  following  shall  be  the  signals  to 
be  used  or  displayed  by  her,  either  together  or  separately, 
namely: 

In  the  daytime — 

First.  A  gun  or  other  explosive  signal  fired  at  intervals 
of  about  a  minute. 

Second.  The  international  code  signal  of  distress  indi- 
cated by  N.  C. 

Third.  The  distance  signal,  consisting  of  a  square  flag, 
having  either  above  or  below  it  a  ball  or  anything  resem- 
bling a  ball. 


Appd-X.)        COAST    AND   CONNECTING    INLAND   WATERS  445 

Fourth.  A  continuous  sounding  with  any  fog-signal  ap- 
paratus. 

At  night — 

First.  A  gun  or  other  explosive  signal  fired  at  intervals 
of  about  a  minute. 

Second.  Flames  on  the  vessel  (as  from  a  burning  tar 
barrel,  oil  barrel,  and  so  forth.) 

Third.  Rockets  or  shells  throwing  stars  of  any  color  or 
description,  fired  one  at  a  time,  at  short  intervals. 

Fourth.  A  continuous  sounding  with  any  fog-signal  ap- 
paratus. (Act  Aug.  19,  1890,  c.  802,  §  1,  26  Stat.  328,  amend- 
ed Act  May  28,  1894,  c.  83,  28  Stat.  82,  U.  S.  Comp.  St. 

§  78/0.) 

Repeal — All  laws  or  parts  of  laws  inconsistent  with  the 
foregoing  regulations  for  preventing  collisions  at  sea  for 
the  navigation  of  all  public  and  private  vessels  of  the  Unit- 
ed States  upon  the  high  seas,  and  in  all  waters  connected 
therewith  navigable  by  sea-going  vessels,  are  hereby  re- 
pealed. (Act  Aug.  19,  1890,  c.  802,  §  2,  26  Stat.  328,  U. 
S.  Comp.  St.  §  7871.) 

(2)  INLAND  RULES  (30  Stat.  96,  as  amended,  38  Stat. 
381  [U.  S.  Comp.  St.  §§  7872-7909]). 

An  act  to  adopt  regulations  for  preventing  collisions  up- 
on certain  harbors,  rivers,  and  inland  waters  of  the  United 
States. 

Whereas  the  provisions  of  chapter  eight  hundred  and 
two  of  the  Laws  of  eighteen  hundred  and  ninety,  and  the 
amendments  thereto,  adopting  regulations  for  preventing 
collisions  at  sea  [i.  e.  International  rules  supra],  apply  to 
all  waters  of  the  United  States  connected  with  the  high 
seas  navigable  by  sea-going  vessels,  except  so  far  as  the 
navigation  of  any  harbor,  river,  or  inland  waters  is  regulat- 
ed by  special  rules  duly  made  by  local  authority ;    and 

Whereas  it  is  desirable  that  the  regulations  relating  to 
the  navigation  of  all  harbors,  rivers,  and  inland  waters  of 


446  STATUTES   REGULATING  NAVIGATION  (Appdx. 

the  United  States,  except  the  Great  Lakes  and  their  con- 
necting and  tributary  waters  as  far  east  as  Montreal  and 
the  Red  River  of  the  North  and  rivers  emptying  into  the 
Gulf  of  Mexico  and  their  tributaries,  shall  be  stated  in 
one  act:    Therefore, 

Be  it  enacted  by  the  senate  and  house  of  representatives 
of  the  United  States  of  America  in  Congress  assembled: 

Regulations  for  preventing  collisions  in  harbors  and  on 
inland  waters — The  following  regulations  for  preventing 
collision  shall  be  followed  by  all  vessels  navigating  all  har- 
bors, rivers,  and  inland  waters  of  the  United  States,  ex- 
cept the  Great  Lakes  and  their  connecting  and  tributary 
waters  as  far  east  as  Montreal  and  the  Red  River  of  the 
North  and  rivers  emptying  into  the  Gulf  of  Mexico  and 
their  tributaries,  and  are  hereby  declared  special  rules  duly 
made  by  local  authority:  (Act  Tune  7,  1897,  c.  4,  §  1,  30 
Stat.  96,  U.  S.  Comp.  St.  §  7872.) 

Preliminary 

Meaning  of  words  "sailing-vessel,"  "steam-vessel,"  and 
"under  way" — In  the  following  rules  every  steam-vessel 
which  is  under  sail  and  not  under  steam  is  to  be  considered 
a  sailing-vessel,  and  every  vessel  under  steam,  whether 
under  sail  or  not,  is  to  be  considered  a  steam  vessel. 

The  word  "steam-vessel"  shall  include  any  vessel  pro- 
pelled by  machinery. 

A  vessel  is  "under  way,"  within  the  meaning  of  these 
rules,  when  she  is  not  at  anchor,  or  made  fast  to  the  shore, 
or  aground.  (Act  June  7,  1897,  c.  4,  §  1,  30  Stat.  96,  U.  S. 
Comp.  St.  §  7873.) 

Rules  Concerning  Lights,  and  so  Forth 
Meaning  of  word  "visible" — The  word  "visible"  in  these 
rules,  when  applied  to  lights,  shall  mean  visible  on  a  dark 
night  with  a  clear  atmosphere.     (Act  Tune  7,  1897,  c.  4,  § 
1,  30  Stat.  96,  U.  S.  Comp.  St.  §  7874.)  ' 


Appdx.)        COAST    AND   CONNECTING   INLAND   WATERS  447 

Art.  1.  Period  of  compliance  with  rules  concerning  lights 
— The  rules  concerning  lights  shall  be  complied  with  in  all 
weathers  from  sunset  to  sunrise,  and  during  such  time  no 
other  lights  which  may  be  mistaken  for  the  prescribed 
lights  shall  be  exhibited!  (Act  June  7,  1897,  c.  4,  §  1,  30 
Stat.  96,  U.  S.  Comp.  St.  §  7875.) 

Art.  2.  Lights  of  steam-vessel  under  way — A  steam-ves- 
sel when  under  way  shall  carry — 

(a)  On  or  in  front  of  the  foremast,  or,  if  a  vessel  without 
a  foremast,  then  in  the  fore  part  of  the  vessel,  a  bright  white 
light  so  constructed  as  to  show  an  unbroken  light  over  an 
arc  of  the  horizon  of  twenty  points  of  the  compass,  so  fixed 
as  to  throw  the  light  ten  points  on  each  side  of  the  vessel, 
namely,  from  right  ahead  to  two  points  abaft  the  beam 
on  either  side,  and  of  such  a  character  as  to  be  visible  at  a 
distance  of  at  least  five  miles. 

(b)  On  the  starboard  side  a  green  light  so  constructed 
as  to  show  an  unbroken  light  over  an  arc  of  the  horizon 
of  ten  points  of  the  compass,  so  fixed  as  to  throw  the  light 
from  right  ahead  to  two  points  abaft  the  beam  on  the  star- 
board side,  and  of  such  a  character  as  to  be  visible  at  a  dis- 
tance of  at  least  two  miles. 

(c)  On  the  port  side  a  red  light  so  constructed  as  to  show 
an  unbroken  light  over  an  arc  of  the  horizon  of  ten  points 
of  the  compass,  so  fixed  as  to  throw  the  light  from  right 
ahead  to  two  points  abaft  the  beam  on  the  port  side,  and  of 
such  a  character  as  to  be  visible  at  a  distance  of  at  least  two 
miles. 

(d)  The  said  green  and  red  side-lights  shall  be  fitted  with 
inboard  screens  projecting  at  least  three  feet  forward  from 
the  light,  so  as  to  prevent  these  lights  from  being  seen 
across  the  bow. 

(e)  A  sea-going  steam-vessel  when  under  way  may  car- 
ry an  additional  white  light  similar  in  construction  to  the 
light  mentioned  in  subdivision  (a). 

These  two  lights  shall  be  so  placed  in  line  with  the  keel 


448  STATUTES   REGULATING   NAVIGATION  (Appdx. 

that  one  shall  be  at  least  fifteen  feet  higher  than  the  other, 
and  in  such  a  position  with  reference  to  each  other  that  the 
lower  light  shall  be  forward  of  the  upper  one.  The  ver- 
tical distance  between  these  lights  shall  be  less  than  the 
horizontal   distance. 

(f)  All  steam-vessels  (except  sea-going  vessels  and  fer- 
ry-boats), shall  carry  in  addition  to  green  and  red  lights 
required  by  article  two  (b),  (c),  and  screens  as  required  by 
article  two  (d),  a  central  range  of  two  white  lights;  the 
after-light  being  carried  at  an  elevation  at  least  fifteen 
feet  above  the  light  at  the  head  of  the  vessel.  The  head- 
light shall  be  so  constructed  as  to  show  an  unbroken  light 
through  twenty  points  of  the  compass,  namely,  from  right 
ahead  to  two  points  abaft  the  beam  on  either  side  of  the  ves- 
sel, and  the  after-light  so  as  to  show  all  around  the  horizon. 
(Act  June  7,  1897,  c.  4,  §  1,  30  Stat.  96,  U.  S.  Comp.  St. 
§  7876.) 

Art.  3.  Steam-vessel  when  towing  another  vessel  or  ves- 
sels— A  steam-vessel  when  towing  another  vessel  shall,  in 
addition  to  her  side-lights,  carry  two  bright  white  lights  in 
a  vertical  line  one  over  the  other,  not  less  than  three  feet 
apart,  and  when  towing  more  than  one  vessel  shall  carry 
an  additional  bright  white  light  three  feet  above  or  below 
such  lights,  if  the  length  of  the  tow  measuring  from  the 
stern  of  the  towing  vessel  to  the  stern  of  the  last  vessel 
towed  exceeds  six  hundred  feet.  Each  of  these  lights  shall 
be  of  the  same  construction  and  character,  and  shall  be  car- 
ried in  the  same  position  as  the  white  light  mentioned  in 
article  two  (a)  or  the  after  range  light  mentioned  in  article 
two  (f). 

Such  steam-vessel  may  carry  a  small  white  light  abaft  the 
funnel  or  aftermast  for  the  vessel  towed  to  steer  by,  but 
such  light  shall  not  be  visible  forward  of  the  beam.  (Act 
June  7,  1897,  c.  4,  §  1,  30  Stat.  97,  U.  S.  Comp.  St.  §  7877.) 

Art.  5.  Sailing-vessel  under  way  or  in  tow — A  sailing- 
vessel  under  way  or  being  towed  shall  carry  the  same  lights 


Appdx.)       COAST   AND   CONNECTING   INLAND  WATERS  449 

as  are  prescribed  by  article  two  for  a  steam-vessel  under 
way,  with  the  exception  of  the  white  lights  mentioned  there- 
in, which  they  shall  never  carry.  (Act  June  7,  1897,  c.  4,  §  1, 
30  Stat.  97,  U.  S.  Comp.  St.  §  7878.) 

Art.  6.  Small  vessel  under  way  in  bad  weather — When- 
ever, as  in  the  case  of  vessels  of  less  than  ten  gross  tons  un- 
der way  during  bad  weather,  the  green  and  red  side-lights 
can  not  be  fixed,  these  lights  shall  be  kept  at  hand,  lighted 
and  ready  for  use ;  and  shall,  on  the  approach  of  or  to  oth- 
er vessels,  be  exhibited  on  their  respective  sides  in  sufficient 
time  to  prevent  collision,  in  such  manner  as  to  make  them 
most  visible  and  so  that  the  green  light  shall  not  be  seen  on 
the  port  side  nor  the  red  light  on  the  starboard  side,  nor,  if 
practicable,  more  than  two  points  abaft  the  beam  on  their 
respective  sides.  To  make  the  use  of  these  portable  lights 
more  certain  and  easy  the  lanterns  containing  them  shall 
each  be  painted  outside  with  the  color  of  the  light  they  re- 
spectively contain,  and  shall  be  provided  with  proper 
screens.  (Act  June  7,  1897,  c.  4,  §  1,  30  Stat.  97,  U.  S.  Comp 
St.  §  7879.) 

Art.  7.  Rowboats — Rowing  boats,  whether  under  oars 
or  sail,  shall  have  ready  at  hand  a  lantern  showing  a  white 
light  which  shall  be  temporarily  exhibited  in  sufficient  time 
to  prevent  collision.  (Act  June  7,  1897,  c.  4,  §  1,  30  Stat. 
98,  U.  S.  Comp.  St.  §  7880.) 

Art.  8.  Pilot-vessels  on  and  off  pilotage  duty — Pilot-ves- 
sels when  engaged  on  their  station  on  pilotage  duty  shall 
not  show  the  lights  required  for  other  vessels  but  shall  car- 
ry a  white'  light  at  the  masthead,  visible  all  around  the  ho- 
rizon, and  shall  also  exhibit  a  flare-up  light  or  flare-up  lights 
at  short  intervals,  which  shall  never  exceed  fifteen  min- 
utes. 

On  the  near  approach  of  or  to  other  vessels  they  shall 

have  their  side-lights  lighted,  ready  for  use,  and  shall  flash 

or  show  them  at  short  intervals,  to  indicate  the  direction  in 

which  they  are  heading,  but  the  green  light  shall  not  be 

Hughes,Adm.(2d  Ed.) — 29 


450  STATUTES   REGULATING   NAVIGATION  (Appdx. 

shown  on  the  port  side  nor  the  red  light  on  the  starboard 
side. 

A  pilot-vessel  of  such  a  class  as  to  be  obliged  to  go  along- 
side of  a  vessel  to  put  a  pilot  on  board  may  show  the  white 
light  instead  of  carrying  it  at  the  masthead,  and  may,  in- 
stead of  the  colored  lights  above  mentioned,  have  at  hand, 
ready  for  use,  a  lantern  with  a  green  glass  on  the  one  side 
and  a  red  glass  on  the  other,  to  be  used  as  prescribed  above. 

Pilot-vessels,  when  not  engaged  on  their  station  on  pilot- 
age duty,  shall  carry  lights  similar  to  those  of  other  vessels 
of  their  tonnage.  (Act  June  7,  1897,  c.  4,  §  1,  30  Stat.  98, 
U.  S.  Comp.  St.  §  78S1.)  * 

Art.  9.  Small  fishing-vessels — (a)  Fishing-vessels  of  less 
than  ten  gross  tons,  when  under  way  and  when  not  having 
their  nets,  trawls,  dredges,  or  lines  in  the  water,  shall  not  be 
required  to  carry  the  colored  side-lights  ;  but  every  such  ves- 
sel shall,  in  lieu  thereof,  have  ready  at  hand  a  lantern  with 
a  green  glass  on  one  side  and  a  red  glass  on  the  other  side, 
,and  on  approaching  to  or  being  approached  by  another  ves- 
sel such  lantern  shall  be  exhibited  in  sufficient  time  to  pre- 
vent collision,  so  that  the  green  light  shall  not  be  seen  on 
the  port  side  nor  the  red  light  on  the  starboard  side. 

(b)  All  fishing-vessels  and  fishing-boats  of  ten  gross  tons 
or  upward,  when  under  way  and  when  not  having  their  nets, 
trawls,  dredges,  or  lines  in  the  water,  shall  carry  and  show 
the  same  lights  as  other  vessels  under  way. 

(c)  All  vessels,  when  trawling,  dredging,  or  fishing  with 
any  kind  of  drag-nets  or  lines,  shall  exhibit,  from  some  part 
of  the  vessel  where  they  can  be  best  seen,  two  lights.  One 
of  these  lights  shall  be  red  and  the  other  shall  be  white. 
The  red  light  shall  be  above  the  white  light,  and  shall  be  at 
a  vertical  distance  from  it  of  not  less  than  six  feet  and  not 
more  than  twelve  feet;  and  the  horizontal  distance  between 
them,  if  any,  shall  not  be  more  than  ten  feet.  These  two 
lights  shall  be  of  such  a  character  and  contained  in  lanterns 
of  such  construction  as  to  be  visible  all  round  the  horizon, 


Appdx.)        COAST   AND   CONNECTING   INLAND  WATERS  451 

the  white  light  a  distance  of  not  less  than  three  miles  and  the 
red  light  of  not  less  than  two  miles. 

(d)  Rafts,  or  other  water  craft  not  herein  provided  for, 
navigating  by  hand  power,  horse  power,  or  by  the  current 
of  the  river,  shall  carry  one  or  more  good  white  lights, 
which  shall  be  placed  in  such  manner  as  shall  be  prescribed 
by  the  Board  of  Supervising  Inspectors  of  Steam  Vessels. 
(Act  June  7,  1897,  c.  4,  §  1,  30  Stat.  98,  U.  S.  Comp.  St.  § 
7882.) 

Art.  10.  Vessel  overtaken  by  another — A  vessel  which 
is  being  overtaken  by  another,  except  a  steam-vessel  with 
an  after  range-light  showing  all  around  the  horizon,  shall 
show  from  her  stern  to  such  last-mentioned  vessel  a  white 
light  or  a  flare-up  light.  (Act  June  7,  1897,  c.  4,  §  1,  30  Stat. 
98,  U.  S.  Comp.  St.  §  7883.) 

Art.  11.  Vessel  at  anchor — A  vessel  under  one  hundred 
and  fifty  feet  in  length  when  at  anchor  shall  carry  forward, 
where  it  can  best  be  seen,  but  at  a  height  not  exceeding 
twenty  feet  above  the  hull,  a  white  light,  in  a  lantern  so 
constructed  as  to  show  a  clear,  uniform,  and  unbroken  light 
visible  all  around  the  horizon  at  a  distance  of  at  least  one 
mile. 

A  vessel  of  one  hundred  and  fifty  feet  or  upwards  in 
length  when  at  anchor  shall  carry  in  the  forward  part  of  the 
vessel,  at  a  height  of  not  less  than  twenty  and  not  exceed- 
ing forty  feet  above  the  hull,  one  such  light,  and  at  or  near 
the  stern  of  the  vessel,  and  at  such  a  height  that  it  shall  be 
not  less  than  fifteen  feet  lower  than  the  forward  light,  an- 
other such  light. 

The  length  of  a  vessel  shall  be  deemed  to  be  the  length 
appearing  in  her  certificate  of  registry.  (Act  June  7,  1897, 
c.  4,  §  1,  30  Stat.  98,  U.  S.  Comp.  St.  §7884.) 

Art.  12.  Additional  lights — Every  vessel  may,  if  neces- 
sary, in  order  to  attract  attention,  in  addition  to  the  lights 
which  she  is  by  these  rules  required  to  carry,  show  a  flare- 
up  light  or  use  any  detonating  signal  that  can  not  be  mis- 


452  STATUTES   REGULATING   NAVIGATION  (Appdx. 

taken  for  a  distress  signal.  (Act  June  7,  1897,  c.  4,  §  1,  30 
Stat.  99,  U.  S.  Comp.  St.  §  7885.) 

Art.  13.  Ships  of  war  and  convoys — Nothing  in  these 
rules  shall  interfere  with  the  operation  of  any  special  rules 
made  by  the  Government  of  any  nation  with  respect  to  ad- 
ditional station  -and  signal  lights  for  two  or  more  ships  of 
war  or  for  vessels  sailing  under  convoy,  or  with  the  exhibi- 
tion of  recognition  signals  adopted  by  shipowners,  which 
have  been  authorized  by  their  respective  Governments  and 
duly  registered  and  published.  (Act  June  7,  1897,  c.  4,  §  1, 
30  Stat.  99,  U.  S.  Comp.  St.  §  7886.) 

Art.  14.  Steam-vessel  under  sail  only — A  steam-vessel 
proceeding  under  sail  only,  but  having  her  funnel  up,  may 
carry  in  daytime,  forward,  where  it  can  best  be  seen,  one 
black  ball  or  shape  two  feet  in  diameter.  (Act  June  7,  1897, 
c.  4,  §  1,  30  Stat.  99,  U.  S.  Comp.  St.  §  7887.) 

Sound  Signals  for  Fog,  and  so  Forth 
Art.  15.     Fog  signals — All  signals  prescribed  by  this  ar- 
ticle for  vessels  under  way  shall  be  given : 

1.  By  "steam-vessels"  on  the  whistle  or  siren. 

2.  By  "sailing-vessels"  and  "vessels  towed"  on  the  fog 
horn. 

The  words  "prolonged  blast"  used  in  this  article  shall 
mean  a  blast  of  from  four  to  six  seconds  duration. 

A  steam-vessel  shall  be  provided  with  an  efficient  whis- 
tle or  siren,  sounded  by  steam  or  by  some  substitute  for 
steam,  so  placed  that  the  sound  may  not  be  intercepted  by 
any  obstruction,  and  with  an  efficient  fog  horn;  also  with 
an  efficient  bell. 

A  sailing-vessel  of  twenty  tons  gross  tonnage  or  upward 
shall  be  provided  with  a  similar  fog  horn  and  bell. 

In  fog,  mist,  falling  snow,  or  heavy  rainstorms,  whether 
by  day  or  night,  the  signals  described  in  this  article  shall  be 
used  as  follows,  namely: 


Appdx.)        COAST  AND   CONNECTING  INLAND   WATERS  453 

(a)  A  steam-vessel  under  way  shall  sound,  at  intervals 
of- not  more  than  one  minute,  a  prolonged  blast. 

(c)  A  sailing-vessel  under  way  shall  sound,  at  intervals 
of  not  more  than  one  minute,  when  on  the  starboard  tack, 
one  blast ;  when  on  the  port  tack,  two  blasts  in  succession, 
and  when  with  the  wind  abaft  the  beam,  three  blasts  in  suc- 
cession. 

(d)  A  vessel  when  at  anchor  shall,  at  intervals,  of  not 
more  than  one  minute,  ring  the  bell  rapidly  for  about  five 
seconds. 

(e)  A  steam-vessel  when  towing,  shall,  instead  of  the 
signals  prescribed  in  subdivision  (a)  of  this  article,  at  in- 
tervals of  not  more  than  one  minute,  sound  three  blasts  in 
succession,  namely,  one  prolonged  blast  followed  by  two 
short  blasts. 

A  vessel  towed  may  give  this  signal  and  she  shall  not  give 
any  other. 

(f)  All  rafts  or  other  water  craft,  not  herein  provided  for, 
navigating  by  hand  power,  horse  power,  or  by  the  current 
of  the  river,  shall  sound  a  blast  of  the  fog-horn,  or  equiv- 
alent signal,  at  intervals  of  not  more  than  one  minute.  (Act 
June  7,  1897,  c.  4,  §  1,  30  Stat.  99,  U.  S.  Comp.  St.  §  7888.) 

Speed  oe  Ships  to  be  Moderate  in  Fog,  and  so  Forth 
Art.  16.     Speed  of  vessels  in  fog — Every  vessel  shall,  in  a 
fog,  mist,  falling  snow,  or  heavy  rainstorms,  go  at  a  mod- 
erate speed,  having  careful  regard  to  the  existing  circum- 
stances and   conditions. 

A  steam-vessel  hearing,  apparently  forward  of  her  beam, 
the  fog-signal  of  a  vessel  the  position  of  which  is  not  as- 
certained shall,  so  far  as  the  circumstances  of  the  case  ad- 
mit, stop  her  engines,  and  then  navigate  with  caution  until 
danger  of  collision  is  over.  (Act  June  7,  1897,  c.  4,  §  1,  30 
Stat.  99,  U.  S.  Comp.  St.  §  7889.) 


454  STATUTES   REGULATING  NAVIGATION  (Appdx. 

Steering  and  Sailing  Rules 
Preliminary — Risk  of  Collision 

Ascertainment  of  risk  of  collision — Risk  of  collision  can, 
when  circumstances  permit,  be  ascertained  by  carefully 
watching  the  compass  bearing  of  an  approaching  vessel.  If 
the  bearing  does  not  appreciably  change,  such  risk  should 
be  deemed  to  exist.  (Act  June  7,  1897,  c.  4,  §  1,  30  Stat.  100. 
U.  S.  Comp.  St.  §  7890.) 

Art.  17.  Rules  of  avoidance  of  risk;  sailing-vessels  ap- 
proaching one  another — When  two  sailing-vessels  are  ap- 
proaching one  another,  so  as  to  involve  risk  of  collision,  one 
of  them  shall  keep  out  of  the  way  of  the  other  as  follows, 
namely : 

(a)  A  vessel  which  is  running  free  shall  keep  out  of  the 
way  of  a  vessel  which  is  close-hauled. 

(b)  A  vessel  which  is  close-hauled  on  the  port  tack  shall 
keep  out  of  the  way  of  a  vessel  which  is  close-hauled  on  the 
starboard  tack. 

(c)  When  both  are  running  free,  with  the  wind  on  dif- 
ferent sides,  the  vessel  which  has  the  wind  on  the  port  side 
shall  keep  out  of  the  way  of  the  other. 

(d)  When  both  are  running  free,  with  the  wind  on  the 
same  side,  the  vessel  which  is  to  the  windward  shall  keep 
out  of  the  way  of  the  vessel  which  is  to  the  leeward. 

(e)  A  vessel  which  has  the  wind  aft  shall  keep  out  of  the 
way  of  the  other  vessel.  (Act  June  7,  1897,  c.  4,  §  1,  30 
Stat.  100,  U.  S.  Comp.  St.  §  7891.) 

Art.  18.  Steam-vessels  meeting  end  on — Rule  I.  When 
steam-vessels  are  approaching  each  other  head  and  head, 
that  is,  end  on,  or  nearly  so,  it  shall  be  the  duty  of  each  to 
pass  on  the  port  side  of  the  other;  and  either  vessel  shall 
give,  as  a  signal  of  her  intention,  one  short  and  distinct  blast 
of  her  whistle,  which  the  other  vessel  shall  answer  promptly 
by  a  similar  blast  of  her  whistle,  and  thereupon  such  vessels 
shall  pass  on  the  port  side  of  each  other. 


Appdx.)        COAST  AND   CONNECTING  INLAND   WATERS  455 

But  if  the  courses  of  such  vessels  are  so  far  on  the  star- 
board of  each  other  as  not  to  be  considered  as  meeting  head 
and  head,  either  vessel  shall  immediately  give  two  short 
and  distinct  blasts  of  her  whistle,  which  the  other  vessel 
shall  answer  promptly  by  two  similar  blasts  of  her  whistle, 
and  they  shall  pass  on  the  starboard  side  of  each  other. 

The  foregoing  only  applies  to  cases  where  vessels  are 
meeting  end  on  or  nearly  end  on,  in  such  a  manner  as  to 
involve  risk  of  collision ;  in  other  words,  to  cases  in  which, 
by  day,  each  vessel  sees  the  masts  of  the  other  in  a  line,  or 
nearly  in  a  line,  with  her  own  and  by  night  to  cases  in 
which  each  vessel  is  in  such  a  position  as  to  see  both  the 
side-lights  of  the  other. 

It  does  not  apply  by  day  to  cases  in  which  a  vessel  sees 
another  ahead  crossing  her  own  course,  or  by  night  to  cases 
where  the  red  light  of  one  vessel  is  opposed  to  the  red 
light  of  the  other,  or  where  the  green  light  of  one  vessel  is 
opposed  to  the  green  light  of  the  other,  or  where  a  red  light 
without  a  green  light  or  a  green  light  without  a  red  light, 
is  seen  ahead,  or  where  both  green  and  red  lights  are  seen 
anywhere  but  ahead. 

Rule  III.  If,  when  steam-vessels  are  approaching  each 
other,  either  vessel  fails  to  understand  the  course  or  in- 
tention of  the  other,  from  any  cause,  the  vessel  so  in  doubt 
shall  immediately  signify  the  same  by  giving  several  short 
and  rapid  blasts,  not  less  than  four,  of  the  steam-whistle. 

Rule  V.  Whenever  a  steam-vessel  is  nearing  a  short  bend 
or  curve,  in  the  channel,  where,  from  the  height  of  the  banks 
or  other  cause,  a  steam-vessel  approaching  from  the  op- 
posite direction  can  not  be  seen  for  a  distance  of  half  a  mile, 
such  steam  vessel,  when  she  shall  have  arrived  within  half  a 
mile  of  such  curve,  or  bend,  shall  give  a  signal  by  one  long 
blast  of  the  steam  whistle,  which  signal  shall  be  answered 
by  a  similar  blast,  given  by  any  approaching  steam-vessel 
that  may  be  within  hearing.  Should  such  signal  be  so  an- 
swered by  a  steam-vessel  upon  the  farther  side  of  such 


456  STATUTES   REGULATING  NAVIGATION  (Appdx. 

bend,  then  the  usual  signals  for  meeting  and  passing  shall 
immediately  be  given  and  answered ;  but,  if  the  first  alarm 
signal  of  such  vessel  be  not  answered,  she  is  to  consider  the 
channel  clear  and  govern  herself  accordingly. 

When  steam-vessels  are  moved  from  their  docks  or 
berths,  and  other  boats  are  liable  to  pass  from  any  direction 
toward  them,  they  shall  give  the  same  signal  as  in  the  case 
of  vessels  meeting  at  a  bend,  but  immediately  after  clearing 
the  berths  so  as  to  be  fully  in  sight  they  shall  be  governed 
by  the  steering  and  sailing  rules. 

Rule  VIII.  When  steam-vessels  are  running  in  the  same 
direction,  and  the  vessel  which  is  astern  shall  desire  to  pass 
on  the  right  or  starboard  hand  of  the  vessel  ahead,  she  shall 
give  one  short  blast  of  the  steam-whistle,  as  a  signal  of 
such  desire,  and  if  the  vessel  ahead  answers  with  one  blast, 
she  shall  put  her  helm  to  port;  or  if  she  shall  desire  to  pass 
on  the  left  or  port  side  of  the  vessel  ahead,  she  shall  give 
two  short  blasts  of  the  steam-whistle  as  a  signal  of  such 
desire,  and  if  the  vessel  ahead  answers  with  two  blasts,  shall 
put  her  helm  to  starboard ;  or  if  the  vessel  ahead  does  not 
think  it  safe  for  the  vessel  astern  to  attempt  to  pass  at  that 
point,  she  shall  immediately  signify  the  same  by  giving  sev- 
eral short  and  rapid  blasts  of  the  steam-whistle,  not  less 
than  four,  and  under  no  circumstances  shall  the  vessel 
astern  attempt  to  pass  the  vessel  ahead  until  such  time  as 
they  have  reached  a  point  where  it  can  be  safely  done,  when 
said  vessel  ahead  shall  signify  her  willingness  by  blowing 
the  proper  signals. 

The  vessel  ahead  shall  in  no  case  attempt  to  cross  the 
bow  or  crowd  upon  the  course  of  the  passing  vessel. 

Rule  IX.  The  whistle  signals  provided  in  the  rules  under 
this  article,  for  steam-vessels  meeting,  passing,  or  overtak- 
ing, are  never  to  be  used  except  when  steamers  are  in  sight 
of  each  other,  and  the  course  and  position  of  each  can  be  de- 
termined in  the  day  time  by  a  sight  of  the  vessel  itself,  or 
by  night  by  seeing  its  signal  lights. 


Appdx.)        COAST   AND   CONNECTING  INLAND   WATERS  457 

In  fog,  mist,  falling  snow  or  heavy  rainstorms,  when  ves- 
sels can  not  so  see  each  other,  fog-signals  only  must  be 
given.  (Act  June  7,  1897,  c.  4,  §  1,  30  Stat.  100,  U.  S.  Comp. 
St.  §  7892.) 

Art.  19.  Steam-vessels  crossing — When  two  steam-ves- 
sels are  crossing,  so  as  to  involve  risk  of  collision,  the  ves- 
sel which  has  the  other  on  her  own  starboard  side  shall  keep 
out  of  the  way  of  the  other.  (Act  June  7,  1897,  c.  4,  §  1,  30 
Stat.  101,  U.  S.  Comp.  St.  §  7893.) 

Art.  20.  Steam  and  sailing  vessels  meeting — When  a 
steam-vessel  and  a  sailing-vessel  are  proceeding  in  such  di- 
rections as  to  involve  risk  of  collision,  the  steam-vessel  shall 
keep  out  of  the  way  of  the  sailing-vessel.  (Act  June  7,  1897, 
c.  4,  §  1,  30  Stat.  101,  U.  S.  Comp.  St.  §  7894.) 

Art.  21.  What  vessel  shall  keep  her  course — Where,  by 
any  of  these  rules,  one  of  the  two  vessels  is  to  keep  out  of 
the  way,  the  other  shall  keep  her  course  and  speed.  (Act 
June  7,  1897,  c.  4,  §  1,  30  Stat.  101,  U.  S.  Comp.  St.  §  7895.) 

Art.  22.  Vessel  to  avoid  crossing  ahead — Every  vessel 
which  is  directed  by  these  rules  to  keep  out  of  the  way  of 
another  vessel  shall,  if  the  circumstances  of  the  case  admit, 
avoid  crossing  ahead  of  the  other.  (Act  June  7,  1897,  c. 
4,  §  1,  30  Stat.  101,  U.  S.  Comp.  St.  §  7896.) 

Art.  23.  Steam-vessels  to  slacken  speed — Every  steam- 
vessel  which  is  directed  by  these  rules  to  keep  out  of  the 
way  of  another  vessel  shall,  on  approaching  her,  if  neces- 
sary, slacken  her  speed  or  stop  or  reverse.  (Act  June  7, 
1897,  c.  4,  §  1,  30  Stat.  101,  U.  S.  Comp.  St.  §  7897.) 

Art.  24.  Overtaking  vessel  to  keep  out  of  the  way ;  def- 
inition of  "overtaking  vessel" — Notwithstanding  anything 
contained  in  these  rules  every  vessel,  overtaking  any  oth- 
er, shall  keep  out  of  the  way  of  the  overtaken  vessel. 

Every  vessel  coming  up  with  another  vessel  from  any 
direction  more  than  two  points  abaft  her  beam,  that  is,  in 
such  a  position,  with  reference  to  the  vessel  which  she  is 
overtaking-  that  at  night  she  would  be  unable  to  see  either 


458  STATUTES   EEGULAT1NG   NAVIGATION  (Appdx. 

of  that  vessel's  side-lights,  shall  be  deemed  to  be  an  over- 
taking- vessel;  and  no  subsequent  alteration  of  the  bearing 
between  the  two  vessels  shall  make  the  overtaking  vessel 
a  crossing  vessel  within  the  meaning  of  these  rules,  or  re- 
lieve her  of  the  duty  of  keeping  clear  of  the  overtaken  ves- 
sel until  she  is  finally  past  and  clear. 

As  by  day  the  overtaking  vessel  can  not  always  know 
with  certainty  whether  she  is  forward  of  or  abaft  this  direc- 
tion from  the  other  vessel  she  should,  if  in  doubt,  assume 
that  she  is  an  overtaking  vessel  and  keep  out  of  the  way. 
(Act  June  7,  1897,  c.  4,  §  1,  30  Stat.  101,  U.  S.  Comp.  St.  § 
7898.) 

Art.  25.  Steam-vessel  in  narrow  channels — In  narrow 
channels  every  steam-vessel  shall,  when  it  is  safe  and  prac- 
ticable, keep  to  that  side  of  the  fair-way  or  mid-channel 
which  lies  on  the  starboard  side  of  such  vessel.  (Act  June  7, 
1897,  c.  4,  §  1,  30  Stat.  101,  U.  S.  Comp.  St.  §  7899.) 

Art.  26.  Sailing-vessels  under  way  to  avoid  fishing 
boats ;  fishing  boats  not  to  obstruct  fair-ways — Sailing-ves- 
sels under  way  shall  keep  out  of  the  way  of  sailing-vessels 
or  boats  fishing  with  nets,  or  lines,  or  trawls.  This  rule 
shall  not  give  to  any  vessel  or  boat  engaged  in  fishing  the 
right  of  obstructing  a  fair-way  used  by  vessels  other  than 
fishing-vessels  or  boats.  (Act  June  7,  1897,  c.  4,  §  1,  30  Stat. 
102,  U.  S.  Comp.  St.  §  7900.) 

Art.  27.  Obedience  to  and  construction  of  rules — In 
obeying  and  construing  these  rules  due  regard  shall  be 
had  to  all  dangers  of  navigation  and  collision,  and  to  any 
special  circumstances  which  may  render  a  departure  from 
the  above  rules  necessary  in  order  to  avoid  immediate  dan- 
ger. (Act  June  7,  1897,  c.  4,  §  1,  30  Stat.  102,  U.  S.  Comp. 
St.  §  7901.) 

Sound  Signals  for  Vessels  in  Sight  of  One  Another 
Art.  28.     Signal  of  steam-vessel  going  at  full  speed  astern 
• — When  vessels  are  in  sight  of  one  another  a  steam-vessel 


Appdx.)        COAST   AND   CONNECTING   INLAND   WATERS  1~,<-1 

under  way  whose  engines  are  going  at  full  speed  astern 
shall  indicate  that  fact  by  three  short  blasts  on  the  whistle. 
(Act  June  7,  1897,  c.  4,  §  1,  30  Stat.  102,  U.  S.  Comp.  St.  § 
7902.) 

No  Vessel  Under  any  Circumstances  to  Neglect 
Proper  Precautions 

Art.  29.  Vessels  not  to  neglect  precautions — Nothing  in 
these  rules  shall  exonerate  any  vessel,  or  the  owner  or  mas- 
ter or  crew  thereof,  from  the  consequences  of  any  neglect  to 
carry  lights  or  signals,  or  of  any  neglect  to  keep  a  proper 
lookout,  or  of  the  neglect  of  any  precaution  which  may  be 
required  by  the  ordinary  practice  of  seamen,  or  by  the  spe- 
cial circumstances  of  the  case.  (Act  June  7,  1897,  c.  4,  §  1, 
30  Stat.  102,  U.  S.  Comp.  St.  §  7903.) 

Art.  30.  War  and  revenue  vessels — The  exhibition  of 
any  light  on  board  of  a  vessel  of  war  of  the  United  States 
or  a  revenue  cutter  may  be  suspended  whenever,  in  the  opin- 
ion of  the  Secretary  of  the  Navy,  the  commander  in  chief 
of  a  squadron,  or  the  commander  of  a  vessel  acting  singly, 
the  special  character  of  the  service  may  require  it.  (Act 
June  7,  1897,  c.  4,  §  1,  30  Stat.  102,  U.  S.  Comp.  St.  §  7904.) 

Distress  Signals 
Art.  31.     Distress  signals — When  a  vessel  is  in  distress 
and  requires  assistance  from  other  vessels  or  from  the  shore 
the  following  shall  be  the  signals  to  be  used  or  displayed 
by  her,  either  together  or  separately,  namely: 

In  the  Daytime 
A  continuous  sounding  with  any  fog-signal  apparatus,  or 
firing  a  gun. 

At  Night 
First.  Flames  on  the  vessel  as  from  a  burning  tar  barrel, 
oil  barrel,  and  so  forth. 


460  STATUTES   REGULATING   NAVIGATION  (Appdx. 

Second.  A  continuous  sounding  with  any  fog-signal  ap- 
paratus, or  firing  a  gun.  (Act  June  7,  1897,  c.  4,  §  1,  30  Stat. 
102,  U.  S.  Comp.  St.  §  7905.) 

Rules  to  be  established  for  steam-vessels  passing,  and  as 
to  lights  on  ferry-boats,  barges  and  canal  boats  in  tow,  and 
as  to  lights  and  day  signals  for  vessels  and  dredges  work- 
ing on  wrecks — The  supervising  inspectors  of  steam  vessels 
and  the  Supervising  Inspector  General  shall  establish  such 
rules  to  be  observed  by  steam  vessels  in  passing  each  oth- 
er and  as  to  the  lights  to  be  carried  by  ferry-boats  and  by 
barges  and  canal  boats  when  in  tow  of  steam  vessels,  and  as 
to  the  lights  and  day  signals  to  be  carried  by  vessels,  dredg- 
es of  all  types,  and  vessels  working  on  wrecks  by  other 
obstruction  to  navigation  or  moored  for  submarine  op- 
erations, or  made  fast  to  a  sunken  object  which  may  drift 
with  the  tide  or  be  towed,  not  inconsistent  with  the  provi- 
sions of  this  Act,  as  they  from  time  to  time  may  deem  nec- 
essary for  safety,  which  rules  when  approved  by  the  Sec- 
retary of  Commerce  are  hereby  declared  special  rules  duly 
made  by  local  authority,  as  provided  for  in  article  thirty  of 
chapter  eight  hundred  and  two  of  the  laws  of  eighteen  hun- 
dred and  ninety.  Two  printed  copies  of  such  rules  shall  be 
furnished  to  such  ferryboats,  barges,  dredges,  canal  boats, 
vessels  working  on  wrecks,  and  steam  vessels,  which  rules 
shall  be  kept  posted  up  in  conspicuous  places  in  such  ves- 
sels, barges,  dredges,  and  boats.  (Act  June  7,  1897,  c.  4,  § 
2,  30  Stat.  102,  amended  Act  May  25,  1914,  c.  98,  38  Stat. 
381,  U.  S.  Comp.  St.  §  7906.) 

Pilots  violating  provisions  of  act;  penalty;  liability  of 
vessel  or  owner — Every  pilot,  engineer,  mate,  or  master  of 
any  steam-vessel,  and  every  master  or  mate  of  any  barge  or 
canal-boat,  who  neglects  or  refuses  to  observe  the  provi- 
sions of  this  Act,  or  the  regulations  established  in  pursu- 
ance of  the  preceding  section,  shall  be  liable  to  a  penalty  of 
fifty  dollars,  and  for  all  damages  sustained  by  any  passen- 
ger in  his  person  or  baggage  by  such  neglect  or  refusal : 


Appdx.)        COAST   AND   CONNECTING  INLAND   WATERS  461 

Provided,  That  nothing  herein  shall  relieve  any  vessel,  own- 
er or  corporation  from  any  liability  incurred  by  reason  of 
such  neglect  or  refusal.  (Act  June  7,  1897,  c.  4,  §  3,  30 
Stat.  102,  U.  S.  Comp.  St.  §  7907.) 

Vessels  navigated  without  compliance  with  act ;  penalty 
— Every  vessel  that  shall  be  navigated  without  complying 
with  the  provisions  of  this  Act  shall  be  liable  to  a  penalty  of 
two  hundred  dollars,  one-half  to  go  to  the  informer,  for 
which  sum  the  vessel  so  navigated  shall  be  liable  and  may 
be  seized  and  proceeded  against  by  action  in  any  district 
court  of  the  United  States  having  jurisdiction  of  the  offense. 
(Act  June  7,  1897,  c.  4,  §  4,  30  Stat.  103,  U.  S.  Comp.  St.  § 
7908.) 

Repeal — Sections  forty-two  hundred  and  thirty-three  and 
forty-four  hundred  and  twelve  (with  the  regulations  made 
in  pursuance  thereof,  except  the  rules  and  regulations  for 
the  government  of  pilots  of  steamers  navigating  the  Red 
River  of  the  North  and  rivers  emptying  into  the  Gulf  of 
Mexico  and  their  tributaries,  and  except  the  rules  for  the 
Great  Lakes  and  their  connecting  and  tributary  waters 
as  far  east  as  Montreal),  and  forty-four  hundred  and  thir- 
teen of  the  Revised  Statutes  of  the  United  States,  and  chap- 
ter two  hundred  and  two  of  the  laws  of  eighteen  hundred 
and  ninety-three,  and  sections  one  and  three  of  chapter  one 
hundred  and  two  of  the  laws  of  eighteen  hundred  and  nine- 
ty-five, and  sections  five,  twelve,  and  thirteen  of  the  Act  ap- 
proved March  third,  eighteen  hundred  and  ninety-seven,  en- 
titled "An  Act  to  amend  the  laws  relating  to  navigation," 
and  all  amendments  thereto,  are  hereby  repealed  so  far  as 
the  harbors,  rivers,  and  inland  waters  aforesaid  (except  the 
Great  Lakes  and  their  connecting  and  tributary  waters  as 
far  east  as  Montreal  and  the  Red  River  of  the  North  and 
rivers  emptying  into  the  Gulf  of  Mexico,  and  their  tributa- 
ries) are  concerned.  (Act  June  7,  1897,  c.  4,  §  5,  30  Stat. 
103,  U.  S.  Comp.  St.  §  7909.) 


402  STATUTES    REGULATING   NAVIGATION  (Appdx. 

(3)  Lines  Between  International  and  Inland  Rules 
The  following  lines  dividing  the  high  seas  from  rivers, 
harbors,  and  inland  waters  are  hereby  designated  and  de- 
fined pursuant  to  section  2  of  the  act  of  Congress  of  Feb- 
ruary 19,  1895.  Waters  inshore  of  the  lines  here  laid  down 
are  "inland  waters,"  and  upon  them  the  inland  rules  and  pilot 
rules  made  in  pursuance  thereof  apply.  Upon  the  high  seas, 
viz,  waters  outside  of  the  lines  here  laid  down,  the  interna- 
tional rules  apply. 

Inland  waters  on  the  Atlantic,  Pacific,  and  Gulf  coasts  of 
the  United  States  where  the  Inland  Rules  of  the  Road 
are  to  be  followed;  and  inland  waters  of  the  United 
States  bordering  on  the  Gulf  of  Mexico  where  the  Inland 
Rules  of  the  Road  or  Pilot  Rules  for  Western  Rivers  are 
to  be  followed. 

(All  bearings  are  In  degrees  true  and  points  magnetic;    distance  in 
nautical  miles,  and  are  given  approximately.) 

Cutler  (Little  River)  Harbor,  Me. — A  line  drawn  from 
Long  Point  226°  (SW.  by  W.  %  W.)  to  Little  River  Head. 

Little  Machias  Bay,  Machias  Bay,  Englishman  Bay, 
Chandler  Bay,  Moosabec  Reach,  Pleasant  Bay,  Narragua- 
gus  Bay,  and  Pigeon  Hill  Bay,  Me. — A  line  drawn  from  Lit- 
tle River  Head  232°  (WSW.  %  W.)  to  the  outer  side  of  Old 
Man;  thence  234°  (WSW.  y2  W.)  to  the  outer  side  of 
Double  Shot  Islands ;  thence  244°  (W.  %  S.)  to  Libby  Is- 
lands Lighthouse;  thence  23iy2°  (WSW.  y±  W.)  to  Moose 
Peak  Lighthouse;  thence  232y2°  (WSW.  %  W.)  to  Little 
Pond  Head;  from  Pond  Point,  Great  Wass  Island,  239° 
(W.  by  S.)  to  outerside  of  Crumple  Island;  thence  249° 
(W.  V4  S.)  to  Petit  Manan  Lighthouse. 

All  Harbors  on  the  Coast  of  Maine,  New  Hampshire,  and 
Massachusetts  Between  Petit  Manan  Lighthouse,  Me.,  and 
Cape  Ann  Lighthouses,  Mass. — A  line  drawn  from  Petit 
Manan    Lighthouse   205y2°    (SW.    %    S.),   26y2   miles,   to 


Appdx.)  HIGH   SEAS  AND   COAST   WATERS  463 

Mount  Desert  Lighthouse;  thence  250%°  (W.  %  S.),  about 
33  miles,  to  Matinicus  Rock  Lighthouses;  thence  267%° 
(WNW.  %  W.),  20  miles,  to  Monhegan  Island  Lighthouse; 
thence  260°  (\V.  %  N.),  19%  miles,  to  Seguin  Lighthouse; 
thence  233°  (WSW.  %  W.),  18%  miles,  to  Portland  Light 
Vessel;  thence  214%°  (SW.  %  W.),  29%  miles,  to  Boon 
Island  Lighthouse:  thence  210°  (SW.),  11  miles,  to  An- 
derson Ledge  Spindle,  off  Isles  of  Shoals  Lighthouse ; 
thence  176%°  (S.  by  W.),  19%  miles,  to  Cape  Ann  Light- 
houses, Mass. 

Boston  Harbor. — From  Eastern  Point  Lighthouse  215° 
(SW.  %  W.),  15%  miles,  to  The  Graves  Lighthouse ;  thence 
1391/4°  (SSE.  %  E.),  7%  miles,  to  Minots  Ledge  Light- 
house. 

All  Harbors  in  Cape  Cod  Bay,  Mass. — A  line  drawn  from 
Plymouth  (Gurnet)  Lighthouses  77y2°  (E.  %  S.),  16% 
miles,  to  Race  Point  Lighthouse. 

Nantucket  Sound,  Vineyard  Sound,  Buzzards  Bay,  Narra- 
gansett  Bay,  Block  Island  Sound,  and  Easterly  Entrance 
to  Long  Island  Sound. — A  line  drawn  from  Chatham  Light- 
houses, Mass.,  146°  (S.  by  E.  %  E.),  4%  miles,  to  Pollock 
Rip  Slue  Light  Vessel;  thence  142°  (SSE.  %  E.),  123,4 
miles,  to  Great  Round  Shoal  Entrance  Gas  and  Whistling 
Buoy  (PS);  thence  229°  (SW.  by  W.  %  W.),  14y2  miles, 
to  Sankaty  Head  Lighthouse ;  from  Smith  Point,  Nantuck- 
et Island,  261°  (W.  %  N.),  27  miles,  to  No  Mans  Land  Gas 
and  Whistling  Buoy,  2;  thence  359°  (N.  by  E.  %  E.),  8y8 
miles,  to  Gay  Head'  Lighthouse;  thence  250°  (W.  %  S.), 
34%  miles,  to  Block  Island  Southeast  Lighthouse;  thence 
250%°  (W.  %  S.),  143/4  miles,  to  Montauk  Point  Light- 
house, on  the  easterly  end  of  Long  Island,  N.  Y. 

New  York  Harbor. — A  line  drawn  from  Rockaway  Point 
Coast  Guard  Station  159%°  (S.  by  E.),  6%  miles,  to  Am- 
brose Channel  Light  Vessel;  thence  238%°  (WSW.  % 
W.),  8%  miles,  to  Navesink  (southerly)  Lighthouse. 

Philadelphia  Harbor  and  Delaware  Bay. — A  line  drawn 


464  STATUTES   REGULATING  NAVIGATION  (Appdx. 

from  Cape  May  Lighthouse  200°  (SSW.  %  W.)  8y2  miles, 
to  Overfalls  Light  Vessel;  thence  2461/4°  (WSW.  %  W.), 
3y8  miles,  to  Cape  Henlopen  Lighthouse. 

Baltimore  Harbor  and  Chesapeake  Bay. — A  line  drawn 
from  Cape  Charles  Lighthouse  179%°  (S.  %  W.),  10y2 
miles,  to  Cape  Henry  Gas  and  Whistling  Buoy,  2;  thence 
257°  (W.  %  S.),  5  miles,  to  Cape  Henry  Lighthouse. 

Charleston  Harbor. — A  line  drawn  from  Ferris  Wheel, 
on  Isle  of  Palms,  154°  (SSE.  %  E.),  7  miles  to  Charleston 
Light  Vessel;  thence  259°  (W.  %  S.),  through  Charleston 
Whistling  Buoy,  6  C,  7%  miles,  until  Charleston  Light- 
house bears  350°  (N.  %  W.) ;  thence  270°  (W.),  2%  miles, 
to  the  beach  of  Folly  Island. 

Savannah  Harbor  and  Calibogue  Sound. — A  line  drawn 
from  Braddock  Point,  Hilton  Head  Island,  150y2o  (SSE.  % 
E.),  934  miles,  to  Tybee  Gas  and  Whistling  Buoy,  T  (PS)  ; 
thence  270°  (W.),  to  the  beach  of  Tybee  Island. 

St.  Simon  Sound  (Brunswick  Harbor)  and  St.  Andrew 
Sound. — From  hotel  on  beach  of  St.  Simon  Island  15/16  mile 
60°  (NE.  by  E.  %  E.)  from  St.  Simon  Lighthouse,  130°  (SE. 
y2  E.),  6%  miles,  to  St.  Simon  Gas  and  Whistling  Buov 
(PS);  thence  194°  (S.  by  W.  %  W.),  8%  miles,  to  St. 
Andrew  Sound  Bar  Buoy  (PS)  ;  thence  270°  (W.),  4% 
miles,  to  the  shore  of  Little  Cumberland  Island. 

St.  Johns  River,  Fla. — A  straight  line  from  the  outer  end 
of  the  northerly  jetty  to  the  outer  end  of  the  southerly 
jetty. 

Florida  Reefs  and  Keys. — A  line  drawn  from  the  easterly 
end  of  the  northerly  jetty,  at  the  entrance  to  the  dredged 
channel  i/2  mile  northerly  of  Norris  Cut,  94°  (E.  14  S.),  1% 
miles,  to  Florida  Reefs  North  End  Whistling  Buoy,  W 
(HS);  thence  178°  (S.  %  E.),  8  miles,  to  Biscayne  Bay 
Sea  Bell  Buoy,  1;  thence  182°  (S.  %  W.),  2%  miles,  to 
Kowey  Rocks  Lighthouse;  thence  188°  (S.  %  W.),  6% 
miles,  to  Triumph  Reef  Beacon,  O  ;  thence  193°  (S.  by  W.), 
4>2  miles,  to  Ajax  Reef  Beacon,  M;   thence  194°  (S.  by  W. 


Appdx.)  HIGH   SEAS  AND   COAST   WATERS  465 

Vs  W.),  2  miles,  to  Pacific  Reef  Beacon,  h\  thence  196y2° 
(S.  by  W.  3/s  W.),  5  miles,  to  Turtle  Harbor  Sea  Buoy,  2; 
thence  210°  (SSW.  y2  W.),  4%  miles,  to  Carysfort  Reef 
Lighthouse;  thence  209y2°  (SSW.  y2  W.),  5%  miles,  to 
Elbow  Reef  Beacon,  J;  thence  217y2°  (SW.  %  S.),  9% 
miles,  to  Molasses  Reef  Gas  Buoy,  2  M ;  thence  235^° 
(SW.  %  W.),  6  miles,  to  Conch  Reef  Beacon,  E;  thence 
234y2°  (SW.  %  W.),  through  Crocker  Reef  Beacon,  D,  10-% 
miles,  to  Alligator  Reef  Lighthouse;  thence  234°  (SW.  % 
W.),  10%  miles,  to  Tennessee  Reef  Buoy,  4;  thence  251° 
(WSW.  %  W.),  10y2  miles,  to  Coffins  Patches  Beacon,  C; 
thence  247°  (SW.  by  W.  %  W.),  8%  miles,  to  Sombrero 
Key  Lighthouse;  hence  253y2°  (WSW.  %  W.),  163^  miles, 
to  Looe  Key  Beacon,  6;  thence  257y2°  (WSW.  %  W.),  6% 
miles  to  American  Shoal  Lighthouse;  thence  253^° 
(WSW.  %  W.),  2%  miles,  to  Maryland  Shoal  Beacon,  S; 
thence  259°  (WSW.  %  W.),  5%  miles,  to  Eastern  Sambo 
Beacon,  A;  thence  253°  (WSW.  %  W.),  2%  miles,  to 
Western  Sambo  Beacon,  R;  thence  257°  (WSW.  %  W.), 
through  Western  Sambo  Buoy,  2,  S1^,  miles,  to  Key  West 
Entrance  Gas  Buoy  (PS);  thence  262°  (W.  %  S.),  4*4 
miles,  to  Sand  Key  Lighthouse;  thence  261°  (W.  by  S.), 
234  miles,  to  Western  Dry  Rocks  Beacon,  2;  thence  268° 
(W.  %  S.),  3y2  miles,  through  Satan  Shoal  Buoy  (HS)  to 
Vestal  Shoal  Buoy,  1 ;  thence  274y2°  (W.  %  N.),  5*4  miles, 
to  Coal  Bin  Rock  Buoy,  CB  (HS)  ;  thence  324%°  (NW. 
%  N.),  714  miles,  to  Marquesas  Keys  left  tangent;  from 
northwesterly  point  Marquesas  Keys  59°  (NE.  by  E.),  4% 
miles,  to  Bar  Buoy,  1,  Boca  Grande  Channel;  thence  83° 
(E.  %  N.),  9%  miles,  to  Northwest  Channel  Entrance  Bell 
Buoy,  1,  Northwest  Channel  into  Key  West;  thence  68° 
(NE.  by  E.  %  H.),  23V2  miles,  to  northerly  side  of  Content 
Keys ;  thence  49°  (NE.  %  E.),  29  miles,  to  East  Cape,  Cape 
Sable. 

Charlotte  Harbor  and  Punta   Gorda,  Fla. — Eastward  of 
Charlotte  Harbor  Entrance  Gas  and  Bell  Buoy   (PS),  off 
HrGTtES,ADM.(2D  Ed.)— 30 


4G6  STATUTES   REGULATING   NAVIGATION  (Appdx. 

Boca  Grande,  and  in  Charlotte  Harbor,  in  Pine  Island 
Sound  and  Matlacha  Pass.  Pilot  Rules  for  Western  Rivers 
apply  in  Peace  and  Miakka  Rivers  north  of  a  250°  and  70° 
(WSW.  and  ENE.)  line  through  Mangrove  Point  Light; 
and  in  Caloosahatchee  River  northward  of  the  steamboat 
wharf  at  Punta  Rasa. 

Tampa  Bay  and  Tributaries,  Fla.— From  the  southerly 
end  of  Long  Key  245°  (SW.  by  W.  %  W.),  9  miles,  to  Tam- 
pa Bay  Gas  and  Whistling  Buoy.  (PS);  thence  129°  (SE. 
%  E.),  6y2  miles,  to  Bar  Bell  Buoy  (PS),  at  the  entrance  to 
Southwest  Channel ;  thence  103°  (E.  by  $.),  2%  miles,  to 
the  house  on  the  north  end  of  Anna  Maria  Key.  Pilot 
Rules  for  Western  Rivers  apply  in  Manatee  River  inside 
Manatee  River  Entrance  Buoy,  2;  in  Hillsboro  Bay  and 
River  inside  Hillsboro  Bay  Light,  2. 

St.  George  Sound,  Apalachicola  Bay,  Carrabelle  and  Apa- 
lachicola  Rivers,  and  St.  Vincent  Sound,  Fla.— North  of  a 
line  from  Lighthouse  Point  246°  (SW.  by  W.  %  W.),  13^4 
miles,  to  southeasterly  side  of  Dog  Island;  to  northward 
of  East  Pass  Bell  Buoy,  1,  at  the  entrance  to  East  Pass,  and 
inside  West  Pass  Bell  Buoy  (PS)  at  the  seaward  entrance 
to  West  Pass.  Pilot  Rules  for  Western  Rivers  apply  in 
Carrabelle  River  inside  the  entrance  to  the  dredged  chan- 
nel; in  Apalachicola  River  northward  of  Apalachicola 
Dredged  Channel  Entrance  Buoy,  2. 

Pensacola  Harbor. — From  Caucus  Cut  Entrance  Gas  and 
Whistling  Buoy,  1A,  3°  (N.  Vs  W.),  tangent  to  easterly  side 
of  Fort  Pickens,  to  the  shore  of  Santa  Rosa  Island,  and 
from  the  buoy  northward  in  the  buoyed  channel  through 
Caucus  Shoal. 

Mobile  Harbor  and  Bay.— From  Mobile  Entrance  Gas 
and  Whistling  Buoy  (PS)  40°  (NE.  %  N.)  to  shore  of 
Mobile  Point,  and  from  the  buoy  320°  (NW.)  to  the  shore 
of  Dauphin  Island.  Pilot  Rules  for  Western  Rivers  apply 
in  Mobile  River  above  Choctaw  Point. 

Sounds,  Lakes,  and  Harbors  on  the  Coasts  of  Alabama, 


Appdx.)  HIGH   SEAS   AND   COAST   WATERS  4G7 

Mississippi,  and  Louisiana,  Between  Mobile  Bay  Entrance 
and  the  Delta  of  the  Mississippi  River. — From  Sand  Island 
Lighthouse  259°  (WSW.  %  W.),  43y2  miles  to  Chandeleur 
Lighthouse;  westward  of  Chandeleur  and  Errol  Islands, 
and  west  of  a  line  drawn  from  the  southwesterly  point  of 
Errol  Island  182°  (S.  *4  E.),  23  miles,  to  Pass  a  Loutre 
Lighthouse.  Pilot  Rules  for  Western  Rivers  apply  in  Pas- 
cagoula  River,  and  in  the  dredged  cut  at  the  entrance  to 
the  river,  above  Pascagoula  River  Entrance  Light,  A,  mark- 
ing the  entrance  to  the  dredged  cut. 

New  Orleans  Harbor  and  the  Delta  of  the  Mississippi 
River. — Inshore  of  a  line  drawn  from  the  outermost  mud 
lump  showing  above  low  water  at  the  entrance  to  Pass  a 
Loutre  to  a  similar  lump  off  the  entrance  to  Northeast 
Pass ;  thence  to  a  similar  lump  off  the  entrance  to  South- 
east Pass;  thence  to  the  outermost  aid  to  navigation  off 
the  entrance  to  South  Pass ;  thence  to  the  outermost  aid  to 
navigation  off  the  entrance  to  Southwest  Pass;  thence 
northerly,  about  lQ1/2  miles,  to  the  westerly  point  of  the 
entrance  to  Bay  Jaque. 

Sabine  Pass,  Tex. — Pilot  Rules  for  Western  Rivers  ap- 
ply to  Sabine  Pass  northward  of  Sabine  Pass  Gas  and 
Whistling  Buoy  (PS),  and  in  Sabine  Lake  and  its  tributa- 
ries.   Outside  of  this  buoy  the  International  Rules  apply. 

Galveston  Harbor. — A  line  drawn  from  Galveston  North 
Jetty  Light  129°  (SE.  by  E.  %  E.),  2  miles  to  Galveston 
Bar  Gas  and  Whistling  Buoy  (PS)  ;  thence  276°  (W.  % 
S.),  2^4  miles,  to  Galveston  (S.)  Jetty  Lighthouse. 

Brazos  River,  Tex. — Pilot  Rules  for  Western  Rivers  ap- 
ply in  the  entrance  and  river  inside  of  Brazos  River  En- 
trance Gas  and  Whistling  Buoy  (PS).  International  Rules 
apply  outside  the  buoy. 

San  Diego  Harbor. — A  line  drawn  from  southerly  tower 
of  Coronado  Hotel  208°  (S.  by  W.),  5  miles,  to  Outside  Bar 
Whistling  Buoy,  SD  (PS);  thence  345°  (NNW.  %  W.), 
3%  miles,  to  Point  Loma  Lighthouse. 


468  STATUTES    REGULATING  NAVIGATION  (Appdx. 

San  Francisco  Harbor. — A  line  drawn  through  Mile 
Rocks  Lighthouse  326°  (NW.  %  W.)  to  Bonita  Point 
Lighthouse. 

Columbia  River  Entrance. — A  line  drawn  from  knuckle  of 
Columbia  River  south  jetty  351°  (NNW.  %  W.)  to  Cape 
Disappointment  Lighthouse. 

Juan  de  Fuca  Strait,  Washington  and  Puget  Sounds. — A 
line  drawn  from  New  Dungeness  Lighthouse  13y20  (N.  by 
YY.),  10%  miles,  to  Hein  Bank  Gas  and  Bell  Buoy  (HS)  ; 
thence  33711.°  (NW.  V4  W.),  10%  miles,  to  Lime  Kiln 
Light,  on  west  side  of  San  Juan  Island;  from  Bellevue 
Point,  San  Juan  Island,  336%°  (NW.  %  W.)  to  Kellett 
Bluff,  Henry  Island;  thence  347°  (NW.  %  N.)  to  Turn 
Point  Light;  thence  711/2°  (NE.  Vs  E.),  8V4  miles,  to  west- 
erly point  of  Skipjack  Island;  thence  38*4°  (N.  by  E.  V± 
E.j,  4%  miles,  to  Patos  Islands  Light;  thence  338°  (NW. 
Y8  W.),  12  miles,  to  Point  Roberts  Light. 

General  Rule. — At  all  buoyed  entrances  from  seaward  to 
bays,  sounds,  rivers,  or  other  estuaries  for  which  specific 
lines  have  not  been  described,  inland  rules  shall  apply  in- 
shore of  a  line  approximately  parallel  with  the  general  trend 
of  the  shore,  drawn  through  the  outermost  buoy  or  other 
aid  to  navigation  of  any  system  of  aids. 

(4)  LAKE  RULES  (28  Stat.  645  [U.  S.  Comp.  St.  §§ 
7910-7941]). 

An  act  to  regulate  navigation  on  the  Great  Lakes  and 
their  connecting  and  tributary  waters. 

Preliminary 
Rules  for  preventing  collisions  on  the  Great  Lakes — The 
following  rules  for  preventing  collisions  shall  be  followed 
in  the  navigation  of  all  public  and  private  vessels  of  the 
United  States  upon  the  Great  Lakes  and  their  connecting 
and  tributary  waters  as  far  east  as  Montreal.  (Act  Feb.  8, 
1895,  c.  64,  §  1,  28  Stat.  645,  U.  S.  Comp.  St.  §  7910.) 


Appdx.)  LAKE   RULES  469 

Steam  and  Sail  Vessels 
Rule  1.  Meaning  of  words  "sail-vessel,"  "steam- vessel," 
"under  way" — Every  steam  vessel  which  is  under  sail  and 
not  under  steam,  shall  be  considered  a  sail  vessel;  and 
every  steam  vessel  which  is  under  steam,  whether  under 
sail  or  not,  shall  be  considered  a  steam  vessel.  The  word 
steam  vessel  shall  include  any  vessel  propelled  by  machin- 
ery. A  vessel  is  under  way  within  the  meaning  of  these 
rules  when  she  is  not  at  anchor  or  made  fast  to  the  shore 
or  aground.  (Act  Feb.  8,  1895,  c.  64,  §  1,  28  Stat.  645,  U. 
S.  Comp.  St.  §7911.) 

Lights 

Rule  2.  Period  of  compliance  with  rules  concerning 
lights;  meaning  of  word  "visible" — The  lights  mentioned 
in  the  following  rules  and  no  others  shall  be  carried  in  all 
weathers  from  sunset  to  sunrise.  The  word  visible  in  these 
rules  when  applied  to  lights  shall  mean  visible  on  a  dark 
night  with  a  clear  atmosphere.  (Act  Feb.  8,  1895,  c.  64, 
§  1,  28  Stat.  645,  U.  S.  Comp.  St.  §  7912.) 

Rule  3.  Lights  of  steam-vessel  under  way — Except  in  the 
cases  hereinafter  expressly  provided  for,  a  steam  vessel 
when  under  way  shall  carry : 

(a)  On  or  in  front  of  the  foremast,  or  if  a  vessel  without 
a  foremast,  then  in  the  forepart  of  the  vessel,  at  a  height 
above  the  hull  of  not  less  than  twenty  feet,  and  if  the  beam 
of  the  vessel  exceeds  twenty  feet,  then  at  a  height  above 
the  hull  not  less  than  such  beam,  so,  however,  that  such 
height  need  not  exceed  forty  feet,  a  bright  white  light  so 
constructed  as  to  show  an  unbroken  light  over  an  arc  of 
the  horizon  of  twenty  points  of  the  compass,  so  fixed  as 
to  throw  the  light  ten  points  on  each  side  of  the  vessel, 
namely,  from  right  ahead  to  two  points  abaft  the  beam  on 
either  side,  and  of  such  character  as  to  be  visible  at  a  dis- 
tance of  at  least  five  miles. 


470  STATUTES    REGULATING   NAVIGATION  (Appdx. 

(b)  On  the  starboard  side,  a  green  light,  so  constructed 
as  to  throw  an  unbroken  light  over  an  arc  of  the  horizon  of 
ten  points  of  the  compass,  so  fixed  as  to  throw  the  light 
from  right  ahead  to  two  points  abaft  the  beam  on  the  star- 
board side,  and  of  such  a  character  as  to  be  visible  at  a  dis- 
tance of  at  least  two  miles. 

(c)  On  the  port  side,  a  red  light,  so  constructed  as  to 
show  an  unbroken  light  over  an  arc  of  the  horizon  of  ten 
points  of  the  compass,  so  fixed  as  to  throw  the  light  from 
right  ahead  to  two  points  abaft  the  beam  on  the  port  side, 
and  of  such  a  character  as  to  be  visible  at  a  distance  of  at 
least  two  miles. 

(d)  The  said  green  and  red  lights  shall  be  fitted  with  in- 
board screens  projecting  at  least  three  feet  forward  from 
the  light,  so  as  to  prevent  these  lights  from  being  seen 
across  the  bow. 

(e)  A  steamer  of  over  one  hundred  and  fifty  feet  register 
length  shall  also  carry  when  under  way  an  additional  bright 
light  similar  in  construction  to  that  mentioned  in  subdivi- 
sion (a),  so  fixed  as  to  throw  the  light  all  around  the  hori- 
zon and  of  such  character  as  to  be  visible  at  a  distance  of 
at  least  three  miles.  Such  additional  light  shall  be  placed 
in  line  with  the  keel  at  least  fifteen  feet  higher  from  the 
deck  and  more  than  seventy-five  feet  abaft  the  light  men- 
tioned in  subdivision  (a).  (Act.  Feb.  8,  1895,  c.  64,  §  1,  28 
Stat.  645,  U.  S.  Comp.  St.  §  7913.) 

Vessels  Towing 
Rule  4.  Steam-vessel  having  a  vessel  in  tow — A  steam 
vessel  having  a  tow  other  than  a  raft  shall  in  addition  to 
the  forward  bright  light  mentioned  in  subdivision  (a)  of 
rule  three  carry  in  a  vertical  line  not  less  than  six  feet 
above  or  below  that  light  a  second  bright  light  of  the  same 
construction  and  character  and  fixed  and  carried  in  the 
same  manner  as  the  forward  bright  light  mentioned  in  said 
subdivision  (a)  of  rule  three.     Such  steamer  shall  also  car- 


Appdx.)  LAKE   RULES  471 

ry  a  small  bright  light  abaft  the  funnel  or  after  mast  for 
the  tow  to  steer  by,  but  such  light  shall  not  be  visible  for- 
ward of  the  beam.  (Act  Feb.  8,  1895,  c.  64,  §  1,  28  Stat. 
646,  U.  S.  Comp.  St.  §  7914.) 

Rule  5.  Steam-vessel  having  a  raft  in  tow — A  steam  ves- 
sel having  a  raft  in  tow  shall,  instead  of  the  forward  lights 
mentioned  in  rule  four,  carry  on  or  in  front  of  the  foremast, 
or  if  a  vessel  without  a  foremast  then  in  the  fore  part  of 
the  vessel,  at  a  height  above  the  hull  of  not  less  than  twen- 
ty feet,  and  if  the  beam  of  the  vessel  exceeds  twenty  feet, 
then  at  a  height  above  the  hull  not  less  than  such  beam,  so 
however  that  such  height  need  not  exceed  forty  feet,  two 
bright  lights  in  a  horizontal  line  athwartships  and  not  less 
than  eight  feet  apart,  each  so  fixed  as  to  throw  the  light  all 
around  the  horizon  and  of  such  character  as  to  be  visible 
at  a  distance  of  at  least  five  miles.  Such  steamer  shall  also 
carry  the  small  bright  steering  light  aft,  of  the  character 
and  fixed  as  required  in  rule  four.  (Act  Feb.  8,  1895,  c.  64, 
§  1,  28  Stat.  646,  U.  S.  Comp.  St.  §  7915.) 

Rule  6.  Sailing-vessel  under  way  or  vessel  in  tow — A 
sailing  vessel  under  way  and  any  vessel  being  towed  shall 
carry  the  side  lights  mentioned  in  rule  three. 

A  vessel  in  tow  shall  also  carry  a  small  bright  light  aft, 
but  such  light  shall  not  be  visible  forward  of  the  beam. 
(Act  Feb.  8,  1895,  c.  64,  §  1,  28  Stat.  646,  U.  S.  Comp.  St. 
§  7916.) 

Rule  7.  Rules  to  be  made  for  tugs — The  lights  for  tugs 
under  thirty  tons  register  whose  principal  business  is  har- 
bor towing,  and  for  boats  navigating  only  on  the  River 
Saint  Lawrence,  also  ferryboats,  rafts,  and  canal  boats, 
shall  be  regulated  by  rules  which  have  been  or  may  here- 
after be  prescribed  by  the  Board  of  Supervising  Inspectors 
of  Steam  Vessels.  (Act  Feb.  8,  1895,  c.  64,  §  1,  28  Stat. 
646,  U.  S.  Comp.  St.  §  7917.) 

Rule  8.  Small  vessel  may  use  portable  lights — Whenever, 
as  in  the  case  of  small  vessels  under  way  during  bad  weath- 


472  STATUTES   REGULATING  NAVIGATION  (Appdx. 

er,  the  green  and  red  side  lights  can  not  be  fixed,  these 
lights  shall  be  kept  at  hand  lighted  and  ready  for  use,  and 
shall,  on  the  approach  of  or  to  other  vessels,  be  exhibited 
on  their  respective  sides  in  sufficient  time  to  prevent  col- 
lision, in  such  manner  as  to  make  them  most  visible,  and 
so  that  the  green  light  shall  not  be  seen  on  the  port  side, 
nor  the  red  light  on  the  starboard  side,  nor,  if  practicable, 
more  than  two  points  abaft  the  beam  on  their  respective 
sides.  To  make  the  use  of  these  portable  lights  more  cer- 
tain and  easy,  they  shall  each  be  painted  outside  with  the 
color  of  the  light  they  respectively  contain,  and  shall  be 
provided  with  suitable  screens.  (Act  Feb.  8,  1895,  c.  64,  § 
1,  28  Stat.  646,  U.  S.  Comp.  St.  §  7918.) 

Rule  9.  Vessel  at  anchor — A  vessel  under  one  hundred 
and  fifty  feet  register  length,  when  at  anchor,  shall  car- 
ry forward,  where  it  can  best  be  seen,  but  at  a  height  not 
exceeding  twenty  feet  above  the  hull,  a  white  light  in  a 
lantern  constructed  so  as  to  show  a  clear,  uniform,  and  un- 
broken light,  visible  all  around  the  horizon,  at  a  distance  of 
at  least  one  mile. 

A  vessel  of  one  hundred  and  fifty  feet  or  upward  in  reg- 
ister length,  when  at  anchor,  shall  carry  in  the  forward 
part  of  the  vessel,  at  a  height  of  not  less  than  twenty  and 
not  exceeding  forty  feet  above  the  hull,  one  such  light,  and 
at  or  near  the  stern  of  the  vessel,  and  at  such  a  height  that 
it  shall  be  not  less  than  fifteen  feet  lower  than  the  forward 
light,  another  such  light.  (Act  Feb.  8,  1895,  c.  64,  §  1,  28 
Stat.  647,  U.  S.  Comp.  St.  §  7919.) 

Rule  10.  Produce  and  canal  boats — Produce  boats,  canal 
boats,  fishing  boats,  rafts,  or  other  water  craft  navigating 
any  bay,  harbor,  or  river  by  hand  power,  horse  power,  sail, 
or  by  the  current  of  the  river,  or  which  shall  be  anchored 
or  moored  in  or  near  the  channel  or  fairway  of  any  bay,  har- 
bor, or  river,  and  not  otherwise  provided  for  in  these  rules, 
shall  carry  one  or  more  good  white  lights,  which  shall  be 
placed  in  such  manner  as  shall  be  prescribed  by  the  Board 


Appdx.)  LAKE    EULES  4.73 

of  Supervising  Inspectors  of  Steam  Vessels.  (Act  Feb.  8, 
1895,  c.  64,  §  1,  28  Stat.  647,  U.  S.  Comp.  St.  §  7920.) 

Rule  11.  Open  boats — Open  boats  shall  not  be  obliged 
to  carry  the  side  lights  required  for  other  vessels,  but  shall, 
if  they  do  not  carry  such  lights,  carry  a  lantern  having  a 
green  slide  on  one  side  and  a  red  slide  on  the  other  side ; 
and  on  the  approach  of  or  to  other  vessels,  such  lantern 
shall  be  exhibited  in  sufficient  time  to  prevent  collision, 
and  in  such  a  manner  that  the  green  light  shall  not  be  seen 
on  the  port  side,  nor  the  red  light  on  the  starboard  side. 
Open  boats,  when  at  anchor  or  stationary,  shall  exhibit  a 
bright  white  light.  They  shall  not,  however,  be  prevented 
from  using  a  flare-up  in  addition  if  considered  expedient. 
(Act  Feb.  8,  1895,  c.  64,  §  1,  28  Stat.  647,  U.  S.  Comp.  St. 
§  7921.) 

Rule  12.  Use  of  torch — Sailing  vessels  shall  at  all  times, 
on  the  approach  of  any  steamer  during  the  nighttime,  show 
a  lighted  torch  upon  that  point  or  quarter  to  which  such 
steamer  shall  be  approaching.  (Act  Feb.  8,  1895,  c.  64,  § 
1,  28  Stat.  647,  U.  S.  Comp.  St.  §  7922.) 

Rule  13.  War  and  revenue  ships — The  exhibition  of  any 
light  on  board  of  a  vessel  of  war  or  revenue  cutter  of  the 
United  States  may  be  suspended  whenever,  in  the  opinion 
of  the  Secretary  of  the  Navy,  the  commander  in  chief  of 
a  squadron,  or  the  commander  of  a  vessel  acting  singly,  the 
special  character  of  the  service  may  require  it.  (Act  Feb. 
8,  1895,  c.  64,  §  1,  28  Stat.  647,  U.  S.  Comp.  St.  §  7923.) 

Fog  Signals 
Rule  14.  Fog  signals  of  steam-vessels  and  sailing-vessels 
under  way  and  at  anchor — A  steam  vessel  shall  be  provid- 
ed with  an  efficient  whistle,  sounded  by  steam  or  by  some 
substitute  for  steam,  placed  before  the  funnel  not  less  than 
eight  feet  from  the  deck,  or  in  such  other  place  as  the  local 
inspectors  of  steam  vessels  shall  determine,  and  of  such 
character  as  to  be  heard  in  ordinary  weather  at  a  distance 


474  STATUTES   REGULATING   NAVIGATION  (Appdx. 

of  at  least  two  miles,  and  with  an  efficient  bell,  and  it  is 
hereby  made  the  duty  of  the  United  States  local  inspectors 
of  steam  vessels  when  inspecting  the  same  to  require  each 
steamer  to  be  furnished  with  such  whistle  and  bell.  A  sail- 
ing vessel  shall  be  provided  with  an  efficient  fog  horn  and 
with  an  efficient  bell. 

Whenever  there  is  thick  weather  by  reason  of  fog,  mist, 
falling  snow,  heavy  rainstorms,  or  other  causes,  whether 
by  day  or  by  night,  fog  signals  shall  be  used  as  follows : 

(a)  A  steam  vessel  under  way,  excepting  only  a  steam 
vessel  with  a  raft  in  tow,  shall  sound  at  intervals  of  not  more 
than  one  minute  three  distinct  blasts  of  her  whistle. 

(b)  Every  vessel  in  tow  of  another  vessel  shall,  at  in- 
tervals of  one  minute,  sound  four  bells  on  a  good  and  effi- 
cient and  properly-placed  bell  as  follows :  By  striking  the 
bell  twice  in  quick  succession,  followed  by  a  little  longer 
interval,  and  then  again  striking  twice  in  quick  succession 
(in  the  manner  in  which  four  bells  is  struck  in  indicating 
time). 

(c)  A  steamer  with  a  raft  in  tow  shall  sound  at  inter- 
vals of  not  more  than  one  minute  a  screeching  or  Modoc 
whistle  for  from  three  to  five  seconds. 

(d)  A  sailing  vessel  under  way  and  not  in  tow  shall 
sound  at  intervals  of  not  more  than  one  minute — 

If  on  the  starboard  tack  with  wind  forward  of  abeam,  one 
blast  of  her  fog  horn ; 

If  on  the  port  tack  with  wind  forward  of  the  beam,  two 
blasts  of  her  fog  horn ; 

If  she  has  the  wind  abaft  the  beam  on  either  side,  three 
blasts  of  her  fog  horn. 

(e)  Any  vessel  at  anchor  and  any  vessel  aground  in  or 
near  a  channel  or  fairway  shall  at  intervals  of  not  more 
than  two  minutes  ring  the  bell  rapidly  for  three  to  five  sec- 
onds. 

(f)  Vessels  of  less  than  ten  tons  registered  tonnage,  not 
being  steam  vessels,  shall  not  be  obliged  to  give  the  above- 


Appdx.)  LAKE    RULES  475 

mentioned  signals,  but  if  they  do  not  they  shall  make  some 
other  efficient  sound  signal  at  intervals  of  not  more  than 
one  minute. 

(g)  Produce  boats,  fishing  boats,  rafts,  or  other  water 
craft  navigating  by  hand  power  or  by  the  current  of  the 
river,  or  anchored  or  moored  in  or  near  the  channel  or 
fairway  and  not  in  any  port,  and  not  otherwise  provided 
for  in  these  rules,  shall  sound  a  fog  horn  or  equivalent  sig- 
nal, at  intervals  of  not  more  than  one  minute.  (Act  Feb. 
8,  1895,  c.  64,  §  1,  28  Stat.  647,  U.  S.  Comp.  St.  §  7924.) 

Rule  15.  Reduced  speed  in  thick  weather — Every  vessel 
shall,  in  thick  weather,  by  reason  of  fog,  mist,  falling  snow, 
heavy  rain  storms,  or  other  causes,  go  at  moderate  speed. 
A  steam  vessel  hearing,  apparently  not  more  than  four 
points  from  right  ahead,  the  fog  signal  of  another  vessel 
shall  at  once  reduce  her  speed  to  bare  steerageway,  and 
navigate  with  caution  until  the  vessels  shall  have  passed 
each  other.  (Act  Feb.  8,  1895,  c.  64,  §  1,  28  Stat.  648,  U. 
S.  Comp.  St.  §  7925.) 

Steering  and  Sailing  Rules 
Sailing-  Vessels 
Rule  16.  Avoidance  of  risk  of  collision;  sailing-vessels 
approaching  one  another — When  two  sailing  vessels  are  ap- 
proaching one  another  so  as  to  involve  risk  of  collision  one 
of  them  shall  keep  out  of  the  way  of  the  other,  as  follows, 
namely : 

(a)  A  vessel  which  is  running  free  shall  keep  out  of  the 
way  of  a  vessel  which  is  closehauled. 

(b)  A  vessel  which  is  closehauled  on  the  port  tack  shall 
keep  out  of  the  way  of  a  vessel  which  is  closehauled  on  the 
starboard  tack. 

(c)  When  both  are  running  free,  with  the  wind  on  dif- 
ferent sides,  the  vessel  which  has  the  wind  on  the  port  side 
shall  keep  out  of  the  way  of  the  other. 

(d)  When  they  are  running  free,  with  the  wind  on  the 


47G  STATUTES    REGULATING   NAVIGATION  (Appdx. 

same  side,  the  vessel  which  is  to  windward  shall  keep  out 
of  the  way  of  the  vessel  which  is  to  leeward.  (Act  Feb. 
8,  1895,  c.  64,  §  1,  28  Stat.  648,  U.  S.  Comp.  St.  §  7926.) 

Steam-Vessels 

Rule  17.  Steam- vessels  meeting  end  on — When  two 
steam  vessels  are  meeting  end  on,  or  nearly  end  on,  so  as 
to  involve  risk  of  collision  each  shall  alter  her  course  to 
starboard,  so  that  each  shall  pass  on  the  port  side  of  the 
other.  (Act  Feb.  8,  1895,  c.  64,  §  1,  28  Stat.  648,  U.  S. 
Comp.  St.  §  7927.) 

Rule  18.  Steam-vessels  crossing — When  two  steam  ves- 
sels are  crossing  so  as  to  involve  risk  of  collision  the  ves- 
sel which  has  the  other  on  her  own  starboard  side  shall 
keep  out  of  the  way  of  the  other.  (Act  Feb.  8,  1895,  c.  64, 
§  1,  28  Stat.  648,  U.  S.  Comp.  St.  §  7928.) 

Rule  19.  Steam  and  sailing  vessels  meeting — When  a 
steam  vessel  and  a  sailing  vessel  are  proceeding  in  such 
directions  as  to  involve  risk  of  collision  the  steam  vessel 
shall  keep  out  of  the  way  of  the  sailing  vessel.  (Act  Feb. 
8,  1895,  c.  64,  §  1,  28  Stat.  648,  U.  S.  Comp.  St.  §  7929.) 

Rule  20.  What  vessel  shall  keep  her  course — Where,  bv 
any  of  the  rules  herein  prescribed,  one  of  two  vessels  shall 
keep  out  of  the  way,  the  other  shall  keep  her  course  and 
speed.  (Act  Feb.  8,  1895,  c.  64,  §  1,  28  Stat.  649,  U.  S. 
Comp.  St.  §  7930.) 

Rule  21.  What  vessel  to  slacken  speed — Every  steam 
vessel  which  is  directed  by  these  rules  to  keep  out  of  the 
way  of  another  vessel  shall,  on  approaching  her,  if  neces- 
sary, slacken  her  speed  or  stop  or  reverse.  (Act  Feb.  8, 
1895,  c.  64,  §  1,  28  Stat.  649,  U.  S.  Comp.  St.  §  7931.) 

Rule  22.  Overtaking  vessel  to  keep  out  of  the  way — Not- 
withstanding anything  contained  in  these  rules  every  ves- 
sel overtaking  any  other  shall  keep  out  of  the  way  of  the 
overtaken  vessel.  (Act  Feb.  8,  1895,  c.  64,  §  1,  28  Stat.  649, 
U.  S.  Comp.  St.  §  7932.) 


Appdx.)  LAKE    RULES  ^" 

Rule  23.  Whistle  signals;  one  blast,  two  blasts — In  all 
weathers  every  steam  vessel  under  way  in  taking  any 
course  authorized  or  required  by  these  rules  shall  indicate 
that  course  by  the  following  signals  on  her  whistle,  to  be 
accompanied  whenever  required  by  corresponding  altera- 
tion of  her  helm ;  and  every  steam  vessel  receiving  a  sig- 
nal from  another  shall  promptly  respond  with  the  same  sig- 
nal or,  as  provided  in  Rule  Twenty-six: 

One  blast  to  mean,  "I  am  directing  my  course  to  star- 
board." 

Two  blasts  to  mean,  "I  am  directing  my  course  to  port." 
But  the  giving  or  answering  signals  by  a  vessel  required  to 
keep  her  course  shall  not  vary  the  duties  and  obligations 
of  the  respective  vessels.  (Act  Feb.  8,  1895,  c.  64,  §  1,  28 
Stat.  649,  U.  S.  Comp.  St.  §  7933.) 

Rule  24.  Vessels  in  rivers  Saint  Mary  and  Saint  Clair — 
That  in  all  narrow  channels  where  there  is  a  current,  and 
in  the  rivers  Saint  Mary,  Saint  Clair,  Detroit,  Niagara,  and 
Saint  Lawrence,  when  two  steamers  are  meeting,  the  de- 
scending steamer  shall  have  the  right  of  way,  and  shall, 
before  the  vessels  shall  have  arrived  within  the  distance  of 
one-half  mile  of  each  other,  give  the  signal  necessary  to 
indicate  which  side  she  elects  to  take.  (Act  Feb.  8,  1895, 
c.  64,  §  1,  28  Stat.  649,  U.  S.  Comp.  St.  §  7934.) 

Rule  25.  Vessels  in  narrow  channels — In  all  channels 
less  than  five  hundred  feet  in  width,  no  steam  vessel  shall 
pass  another  going  in  the  same  direction  unless  the  steam 
vessel  ahead  be  disabled  or  signify  her  willingness  that  the 
steam  vessel  astern  shall  pass,  when  the  steam  vessel 
astern  may  pass,  subject,  however,  to  the  other  rules  ap- 
plicable to  such  a  situation.  And  when  steam  vessels  pro- 
ceeding in  opposite  directions  are  about  to  meet  in  such 
channels,  both  such  vessels  shall  be  slowed  down  to  a 
moderate  speed,  according  to  the  circumstances.  (Act  Feb. 
8,  1895,  c.  64,  §  1,  28  Stat.  649,  U.  S.  Comp.  St.  §  7935.) 

Rule  26.  Refusal  to  pass — If  the  pilot  of  a  steam  vessel 


478  STATUTES   REGULATING  NAVIGATION  (Appdx. 

to  which  a  passing  signal  is  sounded  deems  it  unsafe  to  ac- 
cept and  assent  to  said  signal,  he  shall  not  sound  a  cross 
signal ;  but  in  that  case,  and  in  every  case  where  the  pilot 
of  one  steamer  fails  to  understand  the  course  or  intention 
of  an  approaching  steamer,  whether  from  signals  being 
given  or  answered  erroneously,  or  from  other  causes,  the 
pilot  of  such  steamer  so  receiving  the  first  passing  signal, 
or  the  pilot  so  in  doubt,  shall  sound  several  short  and  rap- 
id blasts  of  the  whistle ;  and  if  the  vessels  shall  have  ap- 
proached within  half  a  mile  of  each  other  both  shall  reduce 
their  speed  to  bare  steerageway,  and,  if  necessary,  stop  and 
reverse.  (Act  Feb.  8,  1895,  c.  64,  §  1,  28  Stat.  649,  U.  S. 
Comp.  St.  §  7936.) 

Rule  27.  Obedience  to  and  construction  of  rules — In 
obeying  and  construing  these  rules  due  regard  shall  be 
had  to  all  dangers  of  navigation  and  collision  and  to  any 
special  circumstances  which  may  render  a  departure  from 
the  above  rules  necessary  in  order  to  avoid  immediate  dan- 
ger. (Act  Feb.  8,  1895,  c.  64,  §  1,  28  Stat.  649,  U.  S.  Comp. 
St.  §  7937.) 

Rule  28.  Vessels  not  to  neglect  precautions — Nothing  in 
these  rules  shall  exonerate  any  vessel,  or  the  owner  or  mas- 
ter or  crew  thereof,  from  the  consequences  of  any  neglect 
to  carry  lights  or  signals,  or  of  any  neglect  to  keep  a  proper 
lookout,  or  of  a  neglect  of  any  precaution  which  may  be 
required  by  the  ordinary  practice  of  seamen,  or  by  the  spe- 
cial circumstances  of  the  case.  (Act  Feb.  8,  1895,  c.  64,  § 
\,  28  Stat.  649,  U.  S.  Comp.  St.  §  7938.) 

Violations  of  provisions  of  act;  penalty — A  fine,  not  ex- 
ceeding two  hundred  dollars,  may  be  imposed  for  the  vio- 
lation of  any  of  the  provisions  of  this  Act.  The  vessel  shall 
be  liable  for  the  said  penalty,  and  may  be  seized  and  pro- 
ceeded against,  by  way  of  libel,  in  the  district  court  of  the 
United  States  for  any  district  within  which  such  vessel  may 
be  found.  (Act  Feb.  8,  1895,  c.  64,  §  2,  28  Stat.  649,  U.  S., 
Comp.   St.  §  7939.) 


Appdx.)  MISSISSIPPI  VALLEY   RULES  479 

Regulations;  steam-vessels  passing;  copies  of  rules — The 

Secretary  of  the  Treasury  of  the  United  States  shall  have 
authority  to  establish  all  necessary  regulations,  not  incon- 
sistent with  the  provisions  of  this  Act,  required  to  carry 
the  same  into  effect. 

The  Board  of  Supervising  Inspectors  of  the  United  States 
shall  have  authority  to  establish  such  regulations  to  be  ob- 
served by  all  steam  vessels  in  passing  each  other,  not  in- 
consistent with  the  provisions  of  this  Act,  as  they  shall 
from  time  to  time  deem  necessary ;  and  all  regulations 
adopted  by  the  said  Board  of  Supervising  Inspectors  under 
the  authority  of  this  Act,  when  approved  by  the  Secretary 
of  the  Treasury,  shall  have  the  force  of  law.  Two  printed 
copies  of  any  such  regulations  for  passing,  signed  by  them, 
shall  be  furnished  to  each  steam  vessel,  and  shall  at  all  times 
be  kept  posted  up  in  conspicuous  places  on  board.  (Act 
Feb.  8,  1895,  c.  64,  §  3,  28  Stat.  649,  U.  S.  Comp.  St.  §  7940.) 

Repeal — That  all  laws  or  parts  of  laws,  so  far  as  applica- 
ble to  the  navigation  of  the  Great  Lakes  and  their  con- 
necting and  tributary  waters  as  far  east  as  Montreal,  incon- 
sistent with  the  foregoing  rules  are  hereby  repealed.  (Act 
Feb.  8,  1895,  c.  64,  §  4,  28  Stat.  650,  U.  S.  Comp.  St.  §  7941.) 

(5)  MISSISSIPPI  VALLEY  RULES  (Rev.  St.  §  4233, 
as  amended  [U.  S.  Comp.  St.  §§  7942-7974]). 
Rules  for  preventing  collisions — The  following  rules  for 
preventing  collisions  on  the  water,  shall  be  followed  in  the 
navigation  of  vessels  of  the  Navy  and  of  the  mercantile  ma- 
rine of  the  United  States.  (R.  S.  §  4233,  U.  S.  Comp.  St.  § 
7942.) 

Steam  and  Sail  Vessels 
Rule  1.  Meaning  of  words  "sail  vessel"  and  "steam  ves- 
sel"— Every  steam  vessel  which  is  under  sail  and  not  under 
steam  shall  be  considered  a  sail  vessel ;  and  every  steam 
vessel  which  is  under  steam,  whether  under  sail  or  not, 
shall  be  considered  a  steam  vessel.    The  words  steam  ves- 


480  STATUTES    REGULATING   NAVIGATION  (Appdx. 

sel  shall  include  any  vessel  propelled  by  machinery.  (R. 
S.  §  4233,  amended  Act  March  3,  1905,  c.  1457,  §  10,  33  Stat. 
1032,  U.  S.  Comp.  St.  §  7943.) 

L/IGHTS 

Rule  2.  Period  of  compliance  with  rules  concerning  lights 
— The  lights  mentioned  in  the  following  rules,  and  no  oth- 
ers, shall  be  carried  in  all  weathers,  between  sunset  and 
sunrise.     (R.  S.  §  4233,  U.  S.  Comp.  St.  §  7944.) 

Rule  3.  Lights  of  ocean  steamers,  and  steamers  carrying 
sail,  under  way — All  ocean-going  steamers,  and  steamers 
carrying  sail,  shall,  when  under  way,  carry — 

(a)  At  the  foremast  head,  a  bright  white  light,  of  such  a 
character  as  to  be  visible  on  a  dark  night,  with  a  clear  at- 
mosphere, at  a  distance  of  at  least  five  miles,  and  so  con- 
structed as  to  show  a  uniform  and  unbroken  light  over  an 
arc  of  the  horizon  of  twenty  points  of  the  compass,  and  so 
fixed  as  to  throw  the  light  ten  points  on  each  side  of  the  ves- 
sel, namely,  from  right  ahead  to  two  points  abaft  the  beam 
on  either  side. 

(b)  On  the  starboard  side,  a  green  light,  of  such  a  char- 
acter as  to  be  visible  on  a  dark  night,  with  a  clear  atmos- 
phere, at  a  distance  of  at  least  two  miles,  and  so  constructed 
as  to  show  a  uniform  and  unbroken  light  over  an  arc  of  the 
horizon  of  ten  points  of  the  compass,  and  so  fixed  as  to 
throw  the  light  from  right  ahead  to  two  points  abaft  the 
beam  on  the  starboard  side. 

(c)  On  the  port  side,  a  red  light,  of  such  a  character  as 
to  be  visible  on  a  dark  night,  with  a  clear  atmosphere,  at  a 
distance  of  at  least  two  miles,  and  so  constructed  as  to  show 
a  uniform  and  unbroken  light  over  an  arc  of  the  horizon  of 
ten  points  of  the  compass,  and  so  fixed  as  to  throw  the  light 
from  right  ahead  to  two  points  abaft  the  beam  on  the  port 
side. 

The  green  and  red  lights  shall  be  fitted  with  inboard 
screens,  projecting  at  least  three   feet   forward   from   the 


Appdx.)  MISSISSIPPI  VALLEY   RULES  481 

lights,  so  as  to  prevent  them  from  being-  seen  across  the 
bow.    (R.  S.  §  4233,  U.  S.  Comp.  St.  §  7945.) 

Rule  4.  Steam-vessel  towing  other  vessels — Steam-ves- 
sels, when  towing  other  vessels,  shall  carry  two  bright 
white  mast-head  lights  vertically,  in  addition  to  their  side- 
lights, so  as  to  distinguish  them  from  other  steam-vessels. 
Each  of  these  mast-head  lights  shall  be  of  the  same  char- 
acter and  construction  as  the  mast-head  lights  prescribed  by 
Rule  three.    (R.  S.  §  4233,  U.  S.  Comp.  St.  §  7946.) 

Rule  5.  Steam-vessels  other  than  ocean  steamers,  and 
steamers  carrying  sail — x\ll  steam-vessels,  other  than  ocean- 
going steamers  and  steamers  carrying  sail,  shall,  when  un- 
der way,  carry  on  the  starboard  and  port  sides  lights  of  the 
same  character  and  construction  and  in  the  same  position 
as  are  prescribed  for  side-lights  by  Rule  three,  except  in  the 
case  provided  in  Rule  six.  (R.  S.  §  4233,  U.  S.  Comp.  St. 
§  7947.) 

Rule  6.  Vessels  on  waters  flowing  into  Gulf  of  Mexico — 
River-steamers  navigating  waters  flowing  into  the  Gulf  of 
Mexico,  and  their  tributaries,  shall  carry  the  following 
lights,  namely :  One  red  light  on  the  outboard  side  of  the 
port  smoke-pipe,  and  one  green  light  on  the  outboard  side  of 
the  starboard  smoke-pipe.  Such  lights  shall  show  both  for- 
ward and  abeam  on  their  respective  sides.  (R.  S.  §  4233,  U. 
S.  Comp.  St.  §  7948.) 

Rule  7.  Coasting  and  inland  waters  steam-vessels,  ferry- 
boats, barges  and  canal-boats — All  coasting  steam-vessels, 
and  steam-vessels  other  than  ferry-boats  and  vessels  other- 
wise expressly  provided  for,  navigating  the  bays,  lakes,  riv- 
ers, or  other  inland  waters  of  the  United  States,  except  those 
mentioned  in  Rule  six,  shall  carry  the  red  and  green  lights, 
as  prescribed  for  ocean-going  steamers ;  and,  in  addition 
thereto,  a  central  range  of  two  white  lights ;  the  after-light 
being  carried  at  an  elevation  of  at  least  fifteen  feet  above  the 
light  at  the  head  of  the  vessel.  The  headlight  shall  be  so 
constructed  as  to  show  a  good  light  through  twenty  points 
Hughes.Adm.  (2d  Ed.) — 31 


4S2  STATUTES   REGULATING   NAVIGATION  (Appdx. 

of  the  compass,  namely :  from  right  ahead  to  two  points 
abaft  the  beam  on  either  side  of  the  vessel ;  and  the  after- 
light so  as  to  show  all  around  the  horizon.  The  lights  for 
ferry-boats,  barges  and  canal  boats  when  in  tow  of  steam 
vessels,  shall  be  regulated  by  such  rules  as  the  board  of 
supervising  inspectors  of  steam-vessels  shall  prescribe.  (R. 
S.  §  4233,  amended  Act  March  3,  1893,  c.  202,  and  Act 
March  3,  1893,  c.  202,  27  Stat.  557,  U.  S.  Comp.  St.  §  7949.) 

Rule  8.  Sailing-vessels  under  way  or  in  tow — Sail-ves- 
sels, under  way  or  being  towed,  shall  carry  the  same  lights 
as  steam-vessels  under  way,  with  the  exception  of  the  white 
mast-head  lights,  which  they  shall  never  carry.  (R.  S.  § 
4233,  U.  S.  Comp.  St.  §  7950.) 

Rule  9.  Small  vessels  in  bad  weather — Whenever,  as 
in  case  of  small  vessels  during  bad  weather,  the  green  and 
red  lights  cannot  be  fixed,  these  lights  shall  be  kept  on  deck, 
on  their  respective  sides  of  the  vessel,  ready  for  instant  ex- 
hibition, and  shall,  on  the  approach  of  or  to  other  vessels, 
be  exhibited  on  their  respective  sides  in  sufficient  time  to 
prevent  collision,  in  such  manner  as  to  make  them  most 
visible,  and  so  that  the  green  light  shall  not  be  seen  on  the 
port  side,  nor  the  red  light  on  the  starboard  side.  To  make 
the  use  of  these  portable  lights  more  certain  and  easy,  they 
shall  each  be  painted  outside  with  the  color  of  the  light  they 
respectively  contain,  and  shall  be  provided  with  suitable 
screens.     (R.  S.  §  4233,  U.  S.  Comp.  St.  §  7951.) 

Rule  10.  Vessels  at  anchor — All  vessels,  whether  steam- 
vessels  or  sail-vessels,  when  at  anchor  in  roadsteads  or  fair- 
ways, shall,  between  sunset  and  sunrise,  exhibit  where  it  can 
best  be  seen,  but  at  a  height  not  exceeding  twenty  feet  above 
the  hull,  a  white  light  in  a  globular  lantern  of  eight  inches 
in  diameter,  and  so  constructed  as  to  show  a  clear,  uniform, 
and  unbroken  light,  vi'sible  all  around  the  horizon,  and  at  a 
distance  of  at  least  one  mile.  (R.  S.  §  4233,  U.  S.  Comp.  St. 
§  7952.) 


Appdx.)  MISSISSIPPI   VALLEY    RULES  483 

Rule  11.  Sailing  and  steam  pilot-vessels — Sailing  pilot- 
vessels  shall  not  carry  the  lights  required  for  other  sailing- 
vessels,  but  shall  carry  a  white  light  at  the  mast-head,  vis- 
ible all  around  the  horizon,  and  shall  also  exhibit  a  flare-up 
light  every  fifteen  minutes. 

Steam  pilot  boats  shall,  in  addition  to  the  masthead  light 
and  green  and  red  side  lights  required  for  ocean  steam  ves- 
sels, carry  a  red  light  hung  vertically  from  three  to  five 
feet  above  the  foremast  headlight,  for  the  purpose  of  distin- 
guishing such  steam  pilot  boats  from  other  steam  vessels. 
(R.  S.  §  4233,  amended  Act  March  3,  1897,  c.  389,  §  5,  29 
Stat.  689,  U.  S.  Comp.  St.  §  7953.) 

Rule  12.  Coal  and  trading  boats— Coal-boats,  trading- 
boats,  produce-boats,  canal-boats,  oyster-boats,  fishing- 
boats,  rafts,  or  other  water-craft,  navigating  any  bay,  har- 
bor, or  river,  by  hand-power,  horse-power,  sail,  or  by  the 
current  of  the  river,  or  which  shall  be  anchored  or  moored  in 
or  near  the  channel  or  fairway  of  any  bay,  harbor,  or  river, 
shall  carry  one  or  more  good  white  lights,  which  shall  be 
placed  in  such  manner  as  shall  be  prescribed  by  the  board 
of  supervising  inspectors  of  steam-vessels.  (R.  S.  §  4233, 
U.  S.  Comp.  St.  §  7954.) 

Rule  13.  Open  boats — Open  boats  shall  not  be  required 
to  carry  the  side-lights  required  for  other  vessels,  but  shall, 
if  they  do  not  carry  such  lights,  carry  a  lantern  having  a 
green  slide  on  one  side  and  a  red  slide  on  the  other  side ; 
and,  on  the  approach  of  or  to  other  vessels,  such  lantern 
shall  be  exhibited  in  sufficient  time  to  prevent  collision,  and 
in  such  a  manner  that  the  green  light  shall  not  be  seen  on 
the  port  side,  nor  the  red  light  on  the  starboard  side.  Open 
boats,  when  at  anchor  or  stationary,  shall  exhibit  a  bright 
white  light.  They  shall  not,  however,  be  prevented  from 
using  a  flare-up,  in  addition,  if  considered  expedient.  (R.  S. 
§  4233,  U.  S.  Comp.  St.  §  7955.) 

Rule  14.  Ships  of  war  and  revenue  cutters — The  exhibi- 
tion of  any  light  on  board  of  a  vessel  of  war  of  the  United 


484  STATUTES    REGULATING   NAVIGATION  (Appdx. 

States  may  be  suspended  whenever,  in  the  opinion  of  the 
Secretary  of  the  Navy,  the  commander  in  chief  of  a  squad- 
ron, or  the  commander  of  a  vessel  acting  singly,  the  special 
character  of  the  service  may  require  it.  The  exhibition  of 
any  light  on  board  of  a  revenue  cutter  of  the  United  States 
may  be  suspended  whenever,  in  the  opinion  of  the  com- 
mander of  the  vessel,  the  special  character  of  the  service 
may  require  it.  (R.  S.  §  4233,  amended,  Act  March  3,  1897, 
c.  389,  §  12,  29  Stat.  690,  U.  S.  Comp.  St.  §  7956.) 

Fog  Signals 
Rule  15.  Fog  signals— (a)  Whenever  there  is  a  fog,  or 
thick  weather,  whether  by  day  or  night,  fog  signals  shall  be 
used  as  follows:  Steam  vessels  under  way  shall  sound  a 
steam  whistle  placed  before  the  funnel,  not  less  than  eight 
feet  from  the  deck,  at  intervals  of  not  more  than  one  minute. 
Steam  vessels,  when  towing,  shall  sound  three  blasts  of 
quick  succession  repeated  at  intervals  of  not  more  than  one 
minute. 

(b)  Sail  vessels  under  way  shall  sound  a  fog  horn  at  in- 
tervals of  not  more  than  one  minute. 

(c)  Steam  vessels  and  sail  vessels,  when  not  under  way, 
shall  sound  a  bell  at  intervals  of  not  more  than  two  minutes. 

(d)  Coal-boats,  trading-boats,  produce-boats,  canal- 
boats,  oyster-boats,  fishing-boats,  rafts,  or  other  water-craft, 
navigating  any  bay,  harbor,  or  river,  by  hand-power,  horse- 
power, sail,  or  by  the  current  of  the  river,  or  anchored  or 
moored  in  or  near  the  channel  or  fairway  of  any  bay,  harbor, 
or  river,  and  not  in  any  port,  shall  sound  a  fog-horn,  or 
equivalent  signal,  which  shall  make  a  sound  equal  to  a 
steam-whistle,  at  intervals  of  not  more  than  two  minutes. 
(R.  S.  §  4233,  amended  Act  March  3,  1897,  c.  389,  §  12,  29 
Stat.  690,  U.  S.  Comp.  St.  §  7957.) 


Appdx.)  MISSISSIPPI  VALLEY   RULES  485 

Steering  and  Sailing  Rules 
Rule  16.  Ascertainment  of  risk  of  collision — Risk  of  col- 
lision can,  when  circumstances  permit,  be  ascertained  by 
carefully  watching  the  compass  bearing  of  an  approaching 
vessel.  If  the  bearing  does  not  appreciably  change  such 
risk  should  be  deemed  to  exist.  (R.  S.  §  4233,  amended  Act 
March  3,  1897,  c.  389,  §  12,  29  Stat.  690,  U.  S.  Comp.  St. 
§  7958.) 

Rule  17.  Rules  of  avoidance  of  risk ;  sailing-vessels  ap- 
proaching one  another— When  two  sailing  vessels  are  ap- 
proaching one  another,  so  as  to  involve  risk  of  collision,  one 
of  them  shall  keep  out  of  the  way  of  the  other,  as  follows, 
namely : 

(a)  A  vessel  which  is  running  free  shall  keep  out  of  the 
way  of  a  vessel  which  is  close-hauled. 

(b)  A  vessel  which  is  close-hauled  on  the  port  tack  shall 
keep  out  of  the  way  of  a  vessel  which  is  close-hauled  on  the 
starboard   tack. 

(c)  When  both  are  running  free,  with  the  wind  on  dif- 
ferent sides,  the  vessel  which  has  the  wind  on  the  port  side 
shall  keep  out  of  the  way  of  the  other. 

(d)  When  both  vessels  are  running  free,  with  the  wind 
on  the  same  side,  the  vessel  which  is  to  the  windward  shall 
keep  out  of  the  way  of  the  vessel  which  is  to  the  leeward. 

(e)  A  vessel  which  has  the  wind  aft  shall  keep  out  of  the 
way  of  the  other  vessel.  (R.  S.  §  4233,  amended  Act  March 
3,  1897,  c.  389,  §  12,  29  Stat.  690,  U.  S.  Comp.  St.  §  7959.) 

Rule  18.  Steam-vessels  meeting  end  on — If  two  vessels 
under  steam  are  meeting  end  on,  or  nearly  end  on,  so  as  to 
involve  risk  of  collision,  the  helms  of  both  shall  be  put  to 
port,  so  that  each  may  pass  on  the  port  side  of  the  other. 
(R.  S.  §  4233,  U.  S.  Comp.  St.  §  7960.) 

Rule  19.  Steam-vessels  crossing — If  two  vessels  under 
steam  are  crossing  so  as  to  involve  risk  of  collision,  the  ves- 
sel which  has  the  other  on  her  own  starboard  side  shall  keep 


486  STATUTES   REGULATING   NAVIGATION  (Appdx. 

out  of  the  way  of  the  other.  (R.  S.  §  4233,  U.  S.  Comp.  St. 
§  7961.) 

Rule  20.  Steam  and  sailing  vessels  meeting — If  two  ves- 
sels, one  of  which  is  a  sail-vessel  and  the  other  a  steam- 
vessel,  are  proceeding  in  such  directions  as  to  involve  risk 
of  collision,  the  steam-vessel  shall  keep  out  of  the  way  of  the 
sail-vessel.     (R.  S.  §  4233,  U.  S.  Comp.  St.  §  7962.) 

Rule  21.  Speed  of  steam- vessel  approaching  another  ves- 
sel and  in  fog — Every  steam-vessel,  when  approaching  an- 
other vessel,  so  as  to  involve  risk  of  collision,  shall  slacken 
her  speed,  or,  if  necessary,  stop  and  reverse;  and  every 
steam-vessel  shall,  when  in  a  fog,  go  at  a  moderate  speed. 
(R.  S.  §  4233,  U.  S.  Comp.  St.  §  7963.) 

Rule  22.  Overtaking  vessel  to  keep  out  of  the  way — Ev- 
ery vessel  overtaking  any  other  vessel  shall  keep  out  of  the 
way  of  the  last-mentioned  vessel.  (R.  S.  §  4233,  U.  S. 
Comp.  St.  §  7964.) 

Rule  23.  What  vessel  shall  keep  her  course — Where,  by 
Rules  seventeen,  nineteen,  twenty,  and  twenty-two,  one  of 
two  vessels  shall  keep  out  of  the  way,  the  other  shall  keep 
her  course,  subject  to  the  qualifications  of  Rule  twenty-four. 
(R.  S.  §  4233,  U.  S.  Comp.  St.  §  7965.) 

Rule  24.  Obedience  to  and  construction  of  rules — In  con- 
struing and  obeying  these  rules,  due  regard  must  be  had  to 
all  dangers  of  navigation,  and  to  any  special  circumstances 
which  may  exist  in  any  particular  case  rendering  a  depar- 
ture from  them  necessary  in  order  to  avoid  immediate  dan- 
ger.    (R.  S.  §  4233,  U.  S.  Comp.  St.  §  7966.) 

Rule  25.  Sailing-vessel  overtaken — A  sail  vessel  which  is 
being  overtaken  by  another  vessel  during  the  night  shall 
show  from  her  stern  to  such  last-mentioned  vessel  a  torch  or 
a  flare-up  light.  (R.  S.  §  4233,  amended  Act  March  3,  1897, 
c.  389,  §  13,  29  Stat.  690,  U.  S.  Comp.  St.  §  7967.) 

Rule  26.  Vessels  not  to  neglect  precautions — Nothing  in 
these  rules  shall  exonerate  any  ship,  or  the  owner,  or  mas- 
ter, or   crew   thereof,   from  the  consequences  of  any   neg- 


Appdx.)  MISSISSIPPI   VALLEY  RULES  487 

lect  to  carry  lights  or  signals,  or  of  any  neglect  to  keep  a 
proper  lookout,  or  of  the  neglect  of  any  precaution  which 
may  be  required  by  the  ordinary  practice  of  seamen  or  by 
the  special  circumstances  of  the  case.  (R.  S.  §  4233,  amend- 
ed Act  March  3,  1897,  c.  389,  §  13,  29  Stat.  690,  U.  S.  Comp. 
St.  §  7968.) 

Regulations  of  towage  of  seagoing  barges  within  inland 
waters — The  chairman  of  the  Light-House  Board,  the  Su- 
pervising Inspector-General  of  the  Steamboat-Inspection 
Service,  and  the  Commissioner  of  Navigation  shall  convene 
as  a  board  at  such  times  as  the  Secretary  of  Commerce  and 
Labor  shall  prescribe  to  prepare  regulations  limiting  the 
length  of  hawsers  between  towing  vessels  and  seagoing 
barges  in  tow  and  the  length  of  such  tows  within  any  of  the 
inland  waters  of  the  United  States  designated  and  defined 
from  time  to  time  pursuant  to  section  two  of  the  Act  ap- 
proved February  nineteenth,  eighteen  hundred  and  ninety- 
five,  and  such  regulations  when  approved  by  the  Secretary 
of  Commerce  and  Labor  shall  have  the  force  of  law.  (Act 
May  28,  1908,  c.  212,  §  14,  35  Stat.  428,  U.  S.  Comp.  St.  § 
7969.) 

Violation  of  regulations  by  master  of  towing  vessel ;  pen- 
alty— The  master  of  the  towing  vessel  shall  be  liable  to  the 
suspension  or  revocation  of  his  license  for  any  willful  vio- 
lation of  regulations  issued  pursuant  to  section  fourteen  in 
the  manner  now  prescribed  for  incompetency,  misconduct, 
or  unskillfulness.  (Act  May  28,  1908,  c.  212,  §  15,  35  Stat. 
429,  U.  S.  Comp.  St.  §  7970.) 

Rules  for  preventing  collisions  extended  to  harbors — On 
and  after  March  first,  eighteen-hundred  and  ninety-five,  the 
provisions  of  sections  forty-two  hundred  and  thirty-three, 
forty-four  hundred  and  twelve,  and  forty-four  hundred  and 
thirteen  of  the  Revised  Statutes  and  regulations  pursuant 
thereto  shall  be  followed  on  the  harbors,  rivers  and  inland 
waters  of  the  United  States.  The  provisions  of  said  sec- 
tions  of   the    Revised    Statutes    and    regulations   pursuant 


488  STATUTES   REGULATING  NAVIGATION  (Appdx. 

thereto  are  hereby  declared  special  rules  duly  made  by  lo- 
cal authority  relative  to  the  navigation  of  harbors,  rivers 
and  inland  waters  as  provided  for  in  Article  thirty,  of  the 
Act  of  August  nineteenth,  eighteen  hundred  and  ninety, 
entitled  "An  Act  to  adopt  regulations  for  preventing  colli- 
sions at  sea."  (Act  Feb.  19,  1895,  c.  102,  §  1,  28  Stat.  672, 
U.  S.  Comp.  St.  §  7971.) 

Secretary  of  Treasury  to  define  lines  dividing  high  seas 
from  rivers  and  harbors — The  Secretary  of  the  Treasury  is 
hereby  authorized,  empowered  and  directed  from  time  to 
time  to  designate  and  define  by  suitable  bearing  or  ranges 
with  light  houses,  light  vessels,  buoys  or  coast  objects,  the 
lines  dividing  the  high  seas  from  rivers,  harbors  and  inland 
waters.  (Act  Feb.  19,  1895,  c.  102,  §  2,  28  Stat.  672,  U.  S. 
Comp.  St.  §  7972.) 

Signal  lights;  penalty  for  violation — Collectors  or  other 
chief  officers  of  the  customs  shall  require  all  sail  vessels  to 
be  furnished  with  proper  signal  lights.  Every  such  vessel 
that  shall  be  navigated  without  complying  with  the  Stat- 
utes of  the  United  States,  or  the  regulations  that  may  be 
lawfully  made  thereunder,  shall  be  liable  to  a  penalty  of 
two  hundred  dollars,  one-half  to  go  to  the  informer;  for 
which  sum  the  vessel  so  navigated  shall  be  liable,  and  may 
be  seized  and  proceeded  against  by  way  of  libel  in  any  dis- 
trict court  of  the  United  States  having  jurisdiction  of  the 
offense.  (Act  Feb.  19,  1895,  c.  102,  §  3,  28  Stat.  672,  U. 
S.  Comp.  St.  §  7973.) 

Inland  waters  defined — The  words  "inland  waters"  used 
in  this  Act  shall  not  be  held  to  include  the  Great  Lakes  and 
their  connecting  and  tributary  waters  as  far  east  as  Mon- 
treal; and  this  Act  shall  not  in  any  respect  modify  or  af- 
fect the  provisions  of  the  Act  entitled  "An  Act  to  regulate 
navigation  of  the  Great  Lakes  and  their  connecting  and 
tributary  waters,"  approved  February  eighth,  eighteen  hun- 
dred and  ninety-five.  (Act  Feb.  19,  1895,  c.  102,  §  4,  28 
Stat.  672,  U.  S.  Comp.  St.  §  7974.) 


Appdx.)  OBSTRUCTING   CHANNELS  489 

(6)  ACT  MARCH  3,  1899  (30  Stat.  1152  [U.  S.  Comp.  St. 
§§  9920,  9921,  9924,  9925]). 

Obstructions  by  vessels,  anchored  or  sunk,  and  floating 
timber;  marking  and  removal  of  sunken  vessels — It  shall 
not  be  lawful  to  tie  up  or  anchor  vessels  or  other  craft  in 
navigable  channels  in  such  a  manner  as  to  prevent  or  ob- 
struct the  passage  of  other  vessels  or  craft;  or  to  volun- 
tarily or  carelessly  sink,  or  permit  or  cause  to  be  sunk, 
vessels  or  other  craft  in  navigable  channels;  or  to  float 
loose  timber  and  logs,  or  to  float  what  is  known  as  sack 
rafts  of  timber  and  logs  in  streams  or  channels  actually  nav- 
igated by  steamboats  in  such  manner  as  to  obstruct,  im- 
pede, or  endanger  navigation.  And  whenever  a  vessel,  raft, 
or  other  craft  is  wrecked  and  sunk  in  a  navigable  channel, 
accidently  or  otherwise,  it  shall  be  the  duty  of  the  owner 
of  such  sunken  craft  to  immediately  mark  it  with  a  buoy 
or  beacon  during  the  day  and  a  lighted  lantern  at  night, 
and  to  maintain  such  marks  until  the  sunken  craft  is  re- 
moved or  abandoned,  and  the  neglect  or  failure  of  the  said 
owner  so  to  do  shall  be  unlawful ;  and  it  shall  be  the  duty  of 
the  owner  of  such  sunken  craft  to  commence  the  immediate 
removal  of  the  same,  and  prosecute  such  removal  diligently, 
and  failure  to  do  so  shall  be  considered  as  an  abandonment 
of  such  craft,  and  subject  the  same  to  removal  by  the  Unit- 
ed States  as  hereinafter  provided  for.  (Act  March  3,  1899, 
c.  425,  §  15,  30  Stat.  1152,  U.  S.  Comp.  St.  §  9920.) 

Penalty  for  violation  of  provisions  of  act — Every  person 
and  every  corporation  that  shall  violate,  or  that  shall  know- 
ingly aid,  abet,  authorize,  or  instigate  a  violation  of  the  pro- 
visions of  sections  thirteen,  fourteen,  and  fifteen  of  this  Act 
shall  be  guilty  of  a  misdemeanor,  and  on  conviction  thereof 
shall  be  punished  by  a  fine  not  exceeding  twenty-five  hun- 
dred dollars  nor  less  than  five  hundred  dollars,  or  by  im- 
prisonment (in  the  case  of  a  natural  person)  for  not  less 
than  thirty  days  nor  more  than  one  year,  or  by  both  such 


490  STATUTES   REGULATING   NAVIGATION  (Appdx. 

fine  and  imprisonment,  in  the  discretion  of  the  court,  one- 
half  of  said  fine  to  be  paid  to  the  person  or  persons  giving 
information  which  shall  lead  to  conviction.  And  any  and 
every  master,  pilot,  and  engineer,  or  person  or  persons  act- 
ing in  such  capacity,  respectively,  on  board  of  any  boat  or 
vessel  who  shall  knowingly  engage  in  towing  any  scow, 
boat,  or  vessel  loaded  with  any  material  specified  in  sec- 
tion thirteen  of  this  Act  to  any  point  or  place  of  deposit 
or  discharge  in  any  harbor  or  navigable  water,  elsewhere 
than  within  the  limits  defined  and  permitted  by  the  Secre- 
tary of  War,  or  who  shall  willfully  injure  or  destroy  any 
work  of  the  United  States  contemplated  in  section  fourteen 
of  this  Act,  or  who  shall  willfully  obstruct  the  channel  of 
any  waterway  in  the  manner  contemplated  in  section  fifteen 
of  this  Act,  shall  be  deemed  guilty  of  a  violation  of  this  Act, 
and  shall  upon  conviction  be  punished  as  hereinbefore  pro- 
vided in  this  section,  and  shall  also  have  his  license  revoked 
or  suspended  for  a  term  to  be  fixed  by  the  judge  before 
whom  tried  and  convicted.  And  any  boat,  vessel,  scow, 
raft,  or  other  craft  used  or  employed  in  violating  any  of  the 
provisions  of  sections  thirteen,  fourteen  and  fifteen  of  this 
Act  shall  be  liable  for  the  pecuniary  penalties  specified  in 
this  section,  and  in  addition  thereto  for  the  amount  of  the 
damages  done  by  said  boat,  vessel,  scow,  raft,  or  other  craft, 
which  latter  sum  shall  be  placed  to  the  credit  of  the  appro- 
priation for  the  improvement  of  the  harbor  or  waterway  in 
which  the  damage  occurred,  and  said  boat,  vessel,  scow, 
raft,  or  other  craft  may  be  proceeded  against  summarily  by 
way  of  libel  in  any  district  court  of  the  United  States  hav- 
ing jurisdiction  thereof.  (Act  March  3,  1899,  c.  425,  §  16, 
30  Stat.  1153,  U.  S.  Comp.  St.  §  9921.) 

Removal  of  obstructions  to  navigation;  notice;  proposals 
to  remove;  bond  of  bidder;  disposition  of  proceeds — When- 
ever the  navigation  of  any  river,  lake,  harbor,  sound,  bay, 
canal,  or  other  navigable  waters  of  the  United  States  shall  be 
obstructed  or  endangered  by  any  sunken  vessel,  boat,  water 


Appdx.)  OBSTRUCTING   CHANNELS  ±91 

craft,  raft,  or  other  similar  obstruction,  and  such  obstruction 
has  existed  for  a  longer  period  than  thirty  days,  or  whenever 
the  abandonment  of  such  obstruction  can  be  legally  estab- 
lished in  a  less  space  of  time,  the  sunken  vessel,  boat,  water 
craft,  raft,  or  other  obstruction  shall  be  subject  to  be  broken 
up,  removed,  sold  or  otherwise  disposed  of  by  the  Secretary 
of  War  at  his  discretion,  without  liability  for  any  damage  to 
the  owners  of  the  same :    Provided,  That  in  his  discretion, 
the  Secretary  of  War  may  cause  reasonable  notice  of  such 
obstruction  of  not  less  than  thirty  days,  unless  the  legal 
abandonment  of  the  obstruction  can  be  established  in  a  less 
time,  to  be  given  by  publication,  addressed  "To  whom  it 
may  concern,"  in  a  newspaper  published  nearest  to  the  lo- 
cality  of  the   obstruction,   requiring  the   removal  thereof: 
And  provided  also,  That  the  Secretary  of  War  may,  in  his 
discretion,  at  or  after  the  time  of  giving  such  notice,  cause 
sealed  proposals  to  be  solicited   by   public   advertisement, 
giving  reasonable  notice  of  not  less  than  ten  days,  for  the 
removal  of  such  obstruction  as  soon  as  possible  after  the 
expiration  of  the  above  specified  thirty  days'  notice,  in  case 
it  has  not  in  the  meantime  been  so  removed,  these  proposals 
and    contracts,   at    his    discretion,   to    be    conditioned    that 
such  vessel,  boat,  water  craft,  raft,  or  other  obstruction,  and 
all  cargo  and  property  contained  therein,  shall  become  the 
property  of  the  contractor,  and  the  contract  shall  be  award- 
ed to  the  bidder  making  the  proposition  most  advantageous 
to  the  United  States:    Provided,  That   such   bidder  shall 
give   satisfactory  security  to  execute  the  work:    Provided 
further,  That  any  money  received  from  the  sale  of  any  such 
wreck,  or  from  any  contractor  for  the  removal  of  wrecks, 
under  this  paragraph  shall  be  covered  into  the  Treasury  of 
the  United  States.     (Act  March  3,   1899,  c.  425,  §   19,  30 
Stat.  1154,  U.  S.  Comp.  St.  §  9924.) 

Destruction  of  certain  vessels  grounding ;  appropriation ; 
repeal — Under  emergency,  in  the  case  of  any  vessel,  boat, 
water  craft,  or  raft,  or  other  similar  obstruction,  sinking  or 


492  STATUTES   REGULATING   NAVIGATION  (Appdx. 

grounding,  or  being  unnecessarily  delayed  in  any  Govern- 
ment canal  or  lock,  or  in  any  navigable  waters  mentioned 
in  section  nineteen,  in  such  manner  as  to  stop,  seriously 
interfere  with,  or  specially  endanger  navigation,  in  the  opin- 
ion of  the  Secretary  of  War,  or  any  agent  of  the  United 
States  to  whom  the  Secretary  may  delegate  proper  author- 
ity, the  Secretary  of  War  or  any  such  agent  shall  have  the 
right  to  take  immediate  possession  of  such  boat,  vessel,  or 
other  water  craft,  or  raft,  so  far  as  to  remove  or  to  destroy 
it  and  to  clear  immediately  the  canal,  lock,  or  navigable 
waters  aforesaid  of  the  obstruction  thereby  caused,  using  his 
best  judgment  to  prevent  any  unnecessary  injury;  and  no 
one  shall  interfere  with  or  prevent  such  removal  or  de- 
struction :  Provided,  That  the  officer  or  agent  charged  with 
the  removal  or  destruction  of  an  obstruction  under  this 
section  may  in  his  discretion  give  notice  in  writing  to  the 
owners  of  any  such  obstruction  requiring  them  to  remove 
it :  And  provided  further,  That  the  expense  of  removing  any 
such  obstruction  as  aforesaid  shall  be  a  charge  against  such 
craft  and  cargo ;  and  if  the  owners  thereof  fail  or  refuse  to 
reimburse  the  United  States  for  such  expense  within  thirty 
days  after  notification,  then  the  officer  or  agent  aforesaid 
may  sell  the  craft  or  cargo,  or  any  part  thereof  that  may 
not  have  been  destroyed  in  removal,  and  the  proceeds  oi 
such  sale  shall  be  covered  into  the  Treasury  of  the  United 
States. 

Such  sum  of  money  as  may  be  necessary  to  execute  this 
section  and  the  preceding  section  of  this  Act  is  hereby  ap- 
propfiated  out  of  any  money  in  the  Treasury  not  otherwise 
appropriated,  to  be  paid  out  on  the  requisition  of  the  Sec- 
retary of  War. 

That  all  laws  or  parts  of  laws  inconsistent  with  the  fore- 
going sections  nine  to  twenty,  inclusive,  of  this  Act  are 
hereby  repealed:  Provided,  That  no  action  begun  or  right 
of  action  accrued  prior  to  the  passage  of  this  Act  shall  be 
affected  by  this  repeal :  Provided  further,  That  nothing  con- 


Appdx.)  STAND-BY   ACT  493 

tained  in  the  said  foregoing  sections  shall  be  construed  as 
repealing,  modifying,  or  in  any  manner  affecting  the  pro- 
visions of  an  Act  of  Congress  approved  June  twenty-ninth, 
eighteen  hundred  and  eighty-eight,  entitled  "An  Act  to  pre- 
vent obstructive  and  injurious  deposits  within  the  harbor 
and  adjacent  waters  of  New  York  City,  by  dumping  or 
otherwise,  and  to  punish  and  prevent  such  offense"  as 
amended  by  section  three  of  the  river  and  harbor  Act  of 
August  eighteenth,  eighteen  hundred  and  ninety-four.  (Act 
March  3,  1899,  c.  425,  §  20,  30  Stat.  1154,  amended  Act  Feb. 
20,  1900,  c.  23,  §  3,  31  Stat.  32,  and  Act  June  13,  1902,  c.  1079, 
§  12,  32  Stat.  375,  U.  S.  Comp.  St.  §  9925.) 

(7)  STAND-BY   ACT   OF   SEPTEMBER  4,    1890    (26 

Stat.  425  [U.  S.  Comp.  St.  §§  7979,  7980]). 
An  act  in  regard  to  collision  at  sea. 

Section  1.  Duties  of  master  of  vessel  in  case  of  collision 
■ — In  every  case  of  collision  between  two  vessels  it  shall  be 
the  duty  of  the  master  or  person  in  charge  of  each  vessel, 
if  and  so  far  as  he  can  do  so  without  serious  danger  to  his 
own  vessel,  crew,  and  passengers  (if  any),  to  stay  by  the 
other  vessel  until  he  has  ascertained  that  she  has  no  need 
of  further  assistance,  and  to  render  to  the  other  vessel,  her 
master,  crew,  and  passengers  (if  any)  such  assistance  as 
may  be  practicable  and  as  may  be  necessary  in  order  to  save 
them  from  any  danger  caused  by  the  collision,  and  also  to 
give  to  the  master  or  person  in  charge  of  the  other  vessel  the 
name  of  his  own  vessel  and  her  port  of  registry,  or  the  port 
or  place  to  which  she  belongs,  and  also  the  name  of  the 
ports  and  places  from  which  and  to  which  she  is  bound. 
If  he  fails  so  to  do,  and  no  reasonable  cause  for  such  fail- 
ure is  shown,  the  collision  shall,  in  the  absence  of  proof  to 
the  contrary,  be  deemed  to  have  been  caused  by  his  wrong- 
ful act,  neglect,  or  default.  (Act  Sept.  4,  1890,  c.  875,  §  1, 
26  Stat.  425,  U.  S.  Comp.  St.  §  7979.) 


494  STATUTES    REGULATING   NAVIGATION  (Appdx. 

Sec.  2.  Failure  to  comply  with  act ;  penalty — Every  mas- 
ter or  person  in  charge  of  a  United  States  vessel  who  fails 
without  reasonable  cause,  to  render  such  assistance  or  give 
such  information  as  aforesaid  shall  be  deemed  guilty  of 
a  misdemeanor,  and  shall  be  liable  to  a  penalty  of  one  thou- 
sand dollars,  or  imprisonment  for  a  term  not  exceeding  two 
years;  and  for  the  above  sum  the  vessel  shall  be  liable  and 
may  be  seized  and  proceeded  against  by  process  in  any  dis- 
trict court  of  the  United  States  by  any  person;  one-half 
such  sum  to  be  payable  to  the  informer  and  the  other  half 
to  the  United  States.  (Act  Sept.  4,  1890,  c.  875,  §  2,  26 
Stat.  425,  U.  S.  Comp.  St.  §  7980.) 

4.  THE  LIMITED   LIABILITY  ACTS 

(1)  ACT  MARCH  3,  1851  (Rev.  St.  §§  4282^1289,  as 
amended  February  27,  1877,  February  18,  1875,  and 
June  19,  1886  [U.  S.  Comp.  St.  §§  8020-8027]). 

Loss  by  fire — No  owner  of  any  vessel  shall  be  liable  to 
answer  for  or  make  good  to  any  person  any  loss  or  dam- 
age, which  may  happen  to  any  merchandise  whatsoever, 
which  shall  be  shipped,  taken  in,  or  put  on  board  any  such 
vessel,  by  reason  or  by  means  of  any  fire  happening  to  or 
on  board  the  vessel,  unless  such  fire  is  caused  by  the  de- 
sign or  neglect  of  such  owner.  (R.  S.  §  4282,  U.  S.  Comp. 
St.  §  8020.) 

Liability  of  owner  not  to  exceed  interest — The  liability 
of  the  owner  of  any  vessel,  for  any  embezzlement,  loss,  or 
destruction,  by  any  person,  of  any  property,  goods,  or  mer- 
chandise,  shipped  or  put  on  board  of  such  vessel,  or  for 
any  loss,  damage,  or  injury  by  collision,  or  for  any  act, 
matter,  or  thing,  lost,  damage,  or  forfeiture,  done,  occa- 
sioned, or  incurred  without  the  privity,  or  knowledge  of 
such  owner  or  owners,  shall  in  no  case  exceed  the  amount 
or  value  of  the  interest  of  such  owner  in  such  vessel,  and 
her  freight  then  pending.  (R.  S.  §  4283.  U.  S.  Comp.  St. 
§  8021.) 


Appdx.)  ACT   OF   MARCH  3,  1851  495 

Apportionment  of  compensation — Whenever  any  such 
embezzlement,  loss,  or  destruction  is  suffered  by  several 
freighters  or  owners  of  goods,  wares,  merchandise,  or  any 
property  whatever,  on  the  same  voyage,  and  the  whole 
value  of  the  vessel,  and  her  freight  for  the  voyage,  is  not 
sufficient  to  make  compensation  to  each  of  them,  they  shall 
receive  compensation  from  the  owner  of  the  vessel  in  pro- 
portion to  their  respective  losses;  and  for  that  purpose  the 
freighters  and  owners  of  the  property,  and  the  owner  of 
the  vessel,  or  any  of  them,  may  take  the  appropriate  pro- 
ceedings in  any  court,  for  the  purpose  of  apportioning  the 
sum  for  which  the  owner  of  the  vessel  may  be  liable  among 
the  parties  entitled  thereto.  (R.  S.  §  4284,  amended  Act 
Feb.  27,  1877,  c.  69,  §  1,  19  Stat.  251,  U.  S.  Comp.  St.  § 
8022.) 

Transfer  of  interest  of  owner  to  trustee — It  shall  be 
deemed  a  sufficient  compliance  on  the  part  of  such  owner 
with  the  requirements  of  this  Title  relating  to  his  liability 
for  any  embezzlement,  loss,  or  destruction  of  any  property, 
goods,  or  merchandise,  if  he  shall  transfer  his  interest  in 
such  vessel  and  freight,  for  the  benefit  of  such  claimants,  to 
a  trustee,  to  be  appointed  by  any  court  of  competent  juris- 
diction, to  act  as  such  trustee  for  the  person  who  may 
prove  to  be  legally  entitled  thereto ;  from  and  after  which 
transfer  all  claims  and  proceedings  against  the  owner  shall 
cease.     (R.  S.  §  4285,  U.  S.  Comp.  St.  §  8023.) 

When  charterer  is  deemed  owner — The  charterer  of  any 
vessel,  in  case  he  shall  man,  victual,  and  navigate  such  ves- 
sel at  his  own  expense,  or  by  his  own  procurement,  shall  be 
deemed  the  owner  of  such  vessel  within  the  meaning  of  the 
provisions  of  this  Title  relating  to  the  limitation  of  the 
liability  of  the  owners  of  vessels;  and  such  vessel,  when  so 
chartered,  shall  be  liable  in  the  same  manner  as  if  navigat- 
ed by  the  owner  thereof.  (R.  S.  §  4286,  U.  S.  Comp.  St.  § 
8024.) 


496  LIMITED  LIABILITY  ACTS  (Appdx. 

Remedies  reserved — Nothing  in  the  five  preceding  sec- 
tions shall  be  construed  to  take  away  or  affect  the  remedy 
to  which  any  party  may  be  entitled,  against  the  master, 
officers,  or  seamen,  for  or  on  account  of  any  embezzlement, 
injury,  loss,  or  destruction  of  merchandise,  or  property,  put 
on  board  any  vessel,  or  on  account  of  any  negligence,  fraud, 
or  other  malversation  of  such  master,  officers,  or  seamen, 
respectively,  nor  to  lessen  or  take  away  any  responsibility 
to  which  any  master  or  seaman  of  any  vessel  may  by  law 
be  liable,  notwithstanding  such  master  or  seaman  may  be 
an  owner  or  part  owner  of  the  vessel.  (R.  S.  §  4287,  U.  S. 
Comp.  St.  §  8025.) 

Shipping  inflammable  materials — Any  person  shipping 
oil  of  vitriol,  unslaked  lime,  inflammable  matches,  or  gun- 
powder, in  a  vessel  taking  cargo  for  divers  persons  on 
freight,  without  delivering,  at  the  time  of  shipment,  a  note 
in  writing,  expressing  the  nature  and  character  of  such 
merchandise,  to  the  master,  mate,  officer,  or  person  in 
charge  of  the  lading  of  the  vessel,  shall  be  liable  to  the 
United  States  in  a  penalty  of  one  thousand  dollars.  But 
this  section  shall  not  apply  to  any  vessel  of  any  description 
whatsoever  used  in  rivers  or  inland  navigation.  (R.  S.  § 
4288,  U.  S.  Comp.  St.  §  8026.) 

Limitation  of  liability  of  owners  applied  to  all  vessels — 
The  provisions  of  the  seven  preceding  sections,  and  of  sec- 
tion eighteen  of  an  act  entitled  "An  act  to  remove  certain 
burdens  on  the  American  merchant  marine  and  encourage 
the  American  foreign  carrying-trade,  and  for  other  purpos- 
es," approved  June  twenty-sixth,  eighteen  hundred  and 
eighty-four,  relating  to  the  limitations  of  the  liability  of 
the  owners  of  vessels,  shall  apply  to  all  sea  going  vessels, 
and  also  to  all  vessels  used  on  lakes  or  rivers  or  in  inland 
navigation,  including  canalboats,  barges,  and  lighters.  (R. 
S.  §  4289,  amended  Act  Feb.  18,  1875,  c.  80,  §  1,  18  Stat. 
320,  and  Act  June  19,  1886,  c.  421,  §  4,  24  Stat.  80,  U.  S. 
Comp.  St.  §  8027.) 


Appdx.)  BOND   OR   STIPULATION  497 

(2)  ACT  JUNE  26,  1884,  §  18  (U.  S.  Comp.  St.  §  8028). 
Liability  of  owners  of  vessels  for  debts  limited — The  indi- 
vidual liability  of  a  ship-owner,  shall  be  limited  to  the  pro- 
portion of  any  or  all  debts  and  liabilities  that  his  individual 
share  of  the  vessel  bears  to  the  whole;  and  the  aggregate 
liabilities  of  all  the  owners  of  a  vessel  on  account  of  the 
same  shall  not  exceed  the  value  of  such  vessels  and  freight 
pending:  Provided,  That  this  provision  shall  not  affect 
the  liability  of  any  owner  incurred  previous  to  the  passage 
of  this  act,  nor  prevent  any  claimant  from  joining  all  the 
owners  in  one  action;  nor  shall  the  same  apply  to  wages 
due  to  persons  employed  by  said  ship-owners.  (Act  June 
26,  1884,  c.  121,  §  18,  23  Stat.  57,  U.  S.  Comp.  St.  §  8028.) 

5.  BONDS  OR  STIPULATIONS  TO  RELEASE 
VESSELS  FROM  ARREST 

REv.  St.  §  941,  as  Amended  (U.  S.  Comp.  St.  §  1567). 
An  act  to  amend  section  nine  hundred  and  forty-one  of  the 
Revised  Statutes. 
Delivery  bond  in  admiralty  proceedings — When  a  war- 
rant of  arrest  or  other  process  in  rem  is  issued  in  any  cause 
of  admiralty  jurisdiction,  except  in  cases  of  seizures  for 
forfeiture  under  any  law  of  the  United  States,  the  marshal 
shall  stay  the  execution  of  such  process,  or  discharge  the 
property  arrested  if  the  process  has  been  levied,  on  receiv- 
ing from  the  claimant  of  the  property  a  bond  or  stipula- 
tion in  double  the  amount  claimed  by  the  libelant,  with 
sufficient  surety,  to  be  approved  by  the  judge  of  the  court 
where  the  cause  is  pending,  or,  in  his  absence,  by  the  col- 
lector of  the  port,  conditioned  to  answer  the  decree  of  the 
court  in  such  cause.  Such  bond  or  stipulation  shall  be  re- 
turned to  the  court,  and  judgment  thereon,  against  both  the 
principal  and  sureties,  may  be  recovered  at  the  time  of  ren- 
dering the  decree  in  the  original  cause.  And  the  owner  of 
1Ittghes,Adm.(2d  Ed.)— 32 


49S  EVIDENCE  IN  THE  FEDERAL  COURTS     (Appdx. 

any  vessel  may  cause  to  be  executed  and  delivered  to  the 
marshal  a  bond  or  stipulation,  with  sufficient  surety,  to  be 
approved  by  the  judge  of  the  court  in  which  he  is  marshal, 
conditioned  to  answer  the  decree  of  said  court  in  all  or  any 
cases  that  shall  thereafter  be  brought  in  said  court  against 
the  said  vessel,  and  thereupon  the  execution  of  all  such 
process  against  said  vessel  shall  be  stayed  so  long  as  the 
amount  secured  by  such  bond  or  stipulation  shall  be  at 
least  double  the  aggregate  amount  claimed  by  the  libelants 
in  such  suits  which  shall  be  begun  and  pending  against 
said  vessel;  and  like  judgments  and  remedies  may  be  had 
on  said  bond  or  stipulation  as  if  a  special  bond  or  stipula- 
tion had  been  filed  in  each  of  said  suits.  The  court  may 
make  such  orders  as  may  be  necessary  to  carry  this  section 
into  effect,  and  especially  for  the  giving  of  proper  notice 
of  any  such  suit.  Such  bond  or  stipulation  shall  be  in- 
dorsed by  the  clerk  witli  a  minute  of  the  suits  wherein  pro- 
cess is  so  stayed,  and  further  security  may  at  any  time  be 
required  by  the  court.  If  a  special  bond  or  stipulation  in 
the  particular  cause  shall  be  given  under  this  section,  the 
liability  as  to  said  cause  on  the  general  bond  or  stipulation 
shall  cease.  (R.  S.  §  941,  amended  Act  March  3,  1899,  c. 
441,  30  Stat.  1354,  U.  S.  Comp.  St.  §  1567.) 

6.  STATUTES  REGULATING  EVIDENCE  IN  THE 
FEDERAL  COURTS 

Mode  of  proof  in  equity  and  admiralty  causes — The  mode 
of  proof  in  causes  of  equity  and  of  admiralty  and  maritime, 
jurisdiction  shall  be  according  to  rules  now  or  hereafter 
prescribed  by  the  Supreme  Court,  except  as  herein  special- 
ly provided.'  (R.  S.  §  862,  U.  S.  Comp.  St.  §  1470.) 

Competency  of  witnesses;  civil  cases — The  competency 
of  a  witness  to  testify  in  any  civil  action,  suit,  or  proceed- 
ing in  the  courts  of  the  United  States  shall  be  determined 
by  the  laws  of  the  State  or  Territory  in  which  the  court  is 


Appdx.)  EVIDENCE   IN   THE   FEDERAL  COURTS  499 

held.     (R.  S.  §  858,  amended  Act  June  29,  1906,  c.  3608,  34 
Stat.  618,  U.  S.  Comp.  St.  §  1464.) 

Depositions  de  bene  esse — The  testimony  of  any  witness 
may  be  taken  in  any  civil  cause  depending-  in  a  district  or 
circuit  court  by  deposition  de  bene  esse,  when  the  witness 
lives  at  a  greater  distance  from  the  place  of  trial  than  one 
hundred  miles,  or  is  bound  on  a  voyage  to  sea,  or  is  about 
to  go  out  of  the  United  States,  or  out  of  the  district  in 
which  the  case  is  to  be  tried,  and  to  a  greater  distance  than 
one  hundred  miles  from  the  place  of  trial,  before  the  time 
of  trial,  or  when  he  is  ancient  and  infirm.  The  deposition 
may  be  taken  before  any  judge  of  any  court  of  the  United 
States,  or  any  commissioner  of  a  circuit  court,  or  any 
clerk  of  a  district  or  circuit  court,  or  any  chancellor,  jus- 
tice, or  judge  of  a  supreme  or  superior  court,  mayor  or  chief 
magistrate  of  a  city,  judge  of  a  county  court  or  court  of 
common  pleas  of  any  of  the  United  States,  or  any  notary 
public,  not  being  of  counsel  or  attorney  to  either  of  the 
parties,  nor  interested  in  the  event  of  the  cause.  Reason- 
able notice  must  first  be  given  in  writing  by  the  party  or 
his  attorney  proposing  to  take  such  deposition,  to  the  op- 
posite party  or  his  attorney  of  record,  as  either  may  be 
nearest,  which  notice  shall  state  the  name  of  the  witness 
and  the  time  and  place  of  the  taking  of  his  deposition;  and 
in  all  cases  in  rem,  the  person  having  the  agency  or  pos- 
session of  the  property  at  the  time  of  seizure  shall  be  deem- 
ed the  adverse  party,  until  a  claim  shall  have  been  put  in  ; 
and  whenever,  by  reason  of  the  absence  from  the  district 
and  want  of  an  attorney  of  record  or  other  reason,  the  giv- 
ing of  the  notice  herein  required  shall  be  impracticable, 
it  shall  be  lawful  to  take  such  depositions  as  there  shall  be 
urgent  necessity  for  taking,  upon  such  notice  as  any  judge 
authorized  to  hold  courts  in  such  circuit  or  district  shall 
think  reasonable  and  direct.  Any  person  may  be  compelled 
to  appear  and  depose  as  provided  by  this  section,  in  the 


50°  EVIDENCE   IN   THE   FEDERAL  COURTS  (Appdx. 

same  manner  as  witnesses  may  be  compelled  to  appear  and 
testify  in  court.     (R.  S.  §  863,  U.  S.  Comp.  St.  §  1472.) 

Mode  of  taking  depositions  de  bene  esse — Every  person 
deposing-  as  provided  in  the  preceding  section  shall  be  cau- 
tioned and  sworn  to  testify  the  whole  truth,  and  carefully 
examined.  His  testimony  shall  be  reduced  to  writing  or 
typewriting  by  the  officer  taking  the  deposition,  or  by  some 
person  under  his  personal  supervision,  or  by  the  deponent 
himself  in  the  officer's  presence,  and  by  no  other  person, 
and  shall,  after  it  has  been  reduced  to  writing  or  typewrit- 
ing, be  subscribed  by  the  deponent.  (R.  S.  §  864,  amended 
Act  May  23,  1900,  c.  541,  31  Stat.  182,  U.  S.  Comp.  St.  § 
1473.) 

Transmission  to  the  court  of  depositions  de  bene  esse — 
Every  deposition  taken  under  the  two  preceding  sections 
shall  be  retained  by  the  magistrate  taking  it,  until  he  deliv- 
ers it  with  his  own  hand  into  the  court  for  which  it  is  tak- 
en ;  or  it  shall,  together  with  a  certificate  of  the  reasons  as 
aforesaid  of  taking  it  and  of  the  notice,  if  any,  given  to  the 
adverse  party,  be  by  him  sealed  up  and  directed  to  such 
court,  and  remain  under  his  seal  until  opened  in  court.  But 
unless  it  appears  to  the  satisfaction  of  the  court  that  the 
witness  is  then  dead,  or  gone  out  of  the  United  States,  or 
to  a  greater  distance  than  one  hundred  miles  from  the  place 
where  the  court  is  sitting,  or  that,  by  reason  of  age,  sick- 
ness, bodily  infirmity,  or  imprisonment,  he  is  unable  to 
travel  and  appear  at  court,  such  deposition  shall  not  be  used 
in  the  cause.     (R.  S.  §  865,  U.  S.  Comp.  St.  §  1474.) 

Depositions  under  a  dedimus  potestatem  and  in  perpetu- 
am — In  any  case  where  it  is  necessary,  in  order  to  prevent 
a  failure  or  delay  of  justice,  any  of  the  courts  of  the  United 
States  may  grant  a  dedimus  potestatem  to  take  depositions 
according  to  common  usage;  and  any  circuit  court,  upon 
application  to  it  as  a  court  of  equity,  may,  according  to  the 
usages  of  chancery,  direct  depositions  to  be  taken  in  per- 
petuam  rei  memoriam,  if  they  relate  to  any  matters  that 


Appdx.)  EVIDENCE  IN   THE   FEDERAL  COURTS  501 

may  be  cognizable  in  any  court  of  the  United  States.  And 
the  provisions  of  sections  eight  hundred  and  sixty-three, 
eight  hundred  and  sixty-four,  and  eight  hundred  and  six- 
ty-five, shall  not  apply  to  any  deposition  to  be  taken  under 
the  authority  of  this  section.  (R.  S.  §  866,  U.  S.  Comp.  St. 
§  1477.) 

Depositions  in  perpetuam;  admissible  at  discretion  of 
court — Any  court  of  the  United  States  may,  in  its  discre- 
tion, admit  in  evidence  in  any  cause  before  it  any  deposi- 
tion taken  in  perpetuam  rei  memoriam,  which  would  be  so 
admissible  in  a  court  of  the  State  wherein  such  cause  is 
pending,  according  to  the  laws  thereof.  (R.  S.  §  867,  U.  S. 
Comp.  St.  §  1478.) 

Deposition  under  dedimus  potestatem;  how  taken — 
When  a  commission  is  issued  by  any  court  of  the  United 
States  for  taking  the  testimony  of  a  witness  named  therein 
at  any  place  within  any  district  or  Territory,  the  clerk  of 
any  court  of  the  United  States  for  such  district  or  Territory 
shall,  on  the  application  of  either  party  to  the  suit,  or  of 
his  agent,  issue  a  subpoena  for  such  witness,  commanding 
him  to  appear  and  testify  before  the  commissioner  named 
in  the  commission,  at  a  time  and  place  stated  in  the  sub- 
poena;  and  if  any  witness,  after  being  duly  served  with 
such  subpoena,  refuses  or  neglects  to  appear,  or,  after  ap- 
pearing, refuses  to  testify,  not  being  privileged  from  giving 
testimony,  and  such  refusal  or  neglect  is  proven  to  the  sat- 
isfaction of  any  judge  of  the  court  whose  clerk  issues  such 
subpoena,  such  judge  may  proceed  to  enforce  obedience  to 
the  process,  or  punish  the  disobedience,  as  any  court  of  the 
United  States  may  proceed  in  case  of  disobedience  to  pro- 
cess of  subpoena  to  testify  issued  by  such  court.  (R.  S.  § 
868,  U.  S.  Comp.  St.  §  1479.) 

Subpoena  duces  tecum  under  a  dedimus  potestatem — 
When  either  party  in  such  suit  applies  to  any  judge  of  a 
United  States  court  in  such  district  or  Territory  for  a  sub- 
poena commanding  the  witness,  therein  to  be  named,  to 


•~>02  EVIDENCE   IN    THE    FEDERAL   COURTS  (Appdx. 

appear  and  testify  before  said  commissioner,  at  the  time 
and  place  to  be  stated  in  the  subpoena,  and  to  bring  with 
him  and  produce  to  such  commissioner  any  paper  or  writing 
or  written  instrument  or  book  or  other  document,  supposed 
to  be  in  the  possession  or  power  of  such  witness,  and  to  be 
described  in  the  subpoena,  such  judge,  on  being  satisfied  by 
the  affidavit  of  the  person  applying,  or  otherwise,  that  there 
is  reason  to  believe  that  such  paper,  writing,  written  instru- 
ment, book,  or  other  document  is  in  the  possession  or  pow- 
er of  the  witness,  and  that  the  same,  if  produced,  would  be 
competent  and  material  evidence  for  the  party  applying 
therefor,  may  order  the  clerk  of  said  court  to  issue  such 
subpoena  accordingly.  And  if  the  witness,  after  being  serv- 
ed with  such  subpoena,  fails  to  produce  to  the  commission- 
er, at  the  time  and  place  stated  in  the  subpoena,  any  such 
paper,  writing,  written  instrument,  book,  or  other  docu- 
ment, being  in  his  possession  or  power,  and  described  in 
the  subpoena,  and  such  failure  is  proved  to  the  satisfaction 
of  said  judge,  he  may  proceed  to  enforce  obedience  to  said 
process  of  subpoena,  or  punish  the  disobedience  in  like 
manner  as  any  court  of  the  United  States  may  proceed  in 
case  of  disobedience  to  like  process  issued  by  such  court. 
When  any  such  paper,  writing,  written  instrument,  book, 
or  other  document  is  produced  to  such  commissioner,  he 
shall,  at  the  cost  of  the  party  requiring  the  same,  cause  to 
be  made  a  correct  copy  thereof,  or  of  so  much  thereof  as 
shall  be  required  by  either  of  the  parties.  (R.  S.  §  869,  U. 
S.  Comp.  St.  §  1480.) 

Witness  under  a  dedimus  potestatem,  when  required  to 
attend — No  witness  shall  be  required,  under  the  provisions 
of  either  of  the  two  preceding  sections,  to  attend  at  any 
place  out  of  the  county  where  he  resides,  nor  more  than 
forty  miles  from  the  place  of  his  residence,  to  give  his  dep- 
osition ;  nor  shall  any  witness  be  deemed  guilty  of  con- 
tempt for  disobeying  any  subpoena  directed  to  him  by  vir- 
tue of  either  of  the  said  sections,  unless  his  fee  for  going 


Appdx.)  EVIDENCE  IN   THE   FEDERAL   COURTS  •r>():>' 

to,  returning  from,  and  one  day's  attendance  at,  the  place 
of  examination,  are  paid  or  tendered  to  him  at  the  time  of 
the  service  of  the  subpoena.  (R.  S.  §  870,  U.  S.  Comp.  St. 
§  1481.) 

Letters  rogatory  from  United  States  courts — When  any 
commission  or  letter  rogatory,  issued  to  take  the  testimony 
of  any  witness  in  a  foreign  country,  in  any  suit  in  which 
the  United  States  are  parties  or  have  an  interest,  is  executed 
by  the  court  or  the  commissioner  to  whom  it  is  directed,  it 
shall  be  returned  by  such  court  or  commissioner  to  the 
minister  or  consul  of  the  United  Stales  nearest  the  place 
where  it  is  executed.  On  receiving  the  same,  the  said 
minister  or  consul  shall  indorse  thereon  a  certificate,  stat- 
ing when  and  where  the  same  was  received,  and  that  the 
said  deposition  is  in  the  same  condition  as  when  he  re- 
ceived it ;  and  he  shall  thereupon  transmit  the  said  letter 
or  commission,  so  executed  and  certified,  by  mail,  to  the 
clerk  of  the  court  from  which  the  same  issued,  in  the  man- 
ner in  which  his  official  dispatches  are  transmitted  to  the 
Government.  And  the  testimony  of  witnesses  so  taken  and 
returned  shall  be  read  as  evidence  on  the  trial  of  the  suit 
in  which  it  was  taken,  without  objection  as  to  the  method 
of  returning  the  same.  When  letters  rogatory  are  address- 
ed from  any  court  of  a  foreign  country  to  any  circuit  court 
of  the  United  States,  a  commissioner  of  such  circuit  court 
designated  by  said  court  to  make  the  examination  of  the 
witnesses  mentioned  in  said  letters,  shall  have  power  to 
compel  the  witnesses  to  appear  and  depose  in  the  same 
manner  as  witnesses  may  be  compelled  to  appear  and  tes- 
tify in  courts.  (R.  S.  §  875,  amended  Act  Feb.  27,  1877,  c. 
69,  §  1,  19  Stat.  241,  U.  S.  Comp.  St.  §  1486.) 

Witnesses;  subpoenas;  may  run  into  another  district — 
Subpoenas  for  witnesses  who  are  required  to  attend  a  court 
of  the  United  States,  in  any  district,  may  run  into  any 
other  district:  Provided,  That  in  civil  causes  the  witness- 
es living  out  of  the  district  in  which  the  court  is  held  do  not 


504  EVIDENCE   IN   THE   FEDERAL  COURTS  (Appdx. 

live  at  a  greater  distance  than  one  hundred  miles  from  the 
place  of  holding  the  same.  (R.  S.  §  876,  U.  S.  Comp.  St.  § 
1487.) 

Witnesses;  subpoena;  form;  attendance  under — Wit- 
nesses who  are  required  to  attend  any  term  of  a  circuit  or 
district  court  on  the  part  of  the  United  States,  shall  be 
subpoenaed  to  attend  to  testify  generally  on  their  behalf, 
and  not  to  depart  the  court  without  leave  thereof,  or  of  the 
district  attorney;  and  under  such  process  they  shall  ap- 
pear before  the  grand  or  petit  jury,  or  both,  as  they  may 
be  required  by  the  court  or  district  attorney.  (R.  S.  §  877, 
U.  S.  Comp.  St.  §  1488.) 

ACT  MARCH  9,  1892  (27  Stat.  7  [U.  S.  Comp.  St.  §  1476]). 
An  act  to  provide  an  additional  mode  of  taking  depositions 

of  witnesses  in  causes  pending  in  the  courts  of  the  United 

States. 

Depositions;  mode  of  taking — In  addition  to  the  mode 
of  taking  the  depositions  of  witnesses  in  causes  pending  at 
law  or  equity  in  the  district  and  circuit  courts  of  the  United 
States,  it  shall  be  lawful  to  take  the  depositions  or  testi- 
mony of  witnesses  in  the  mode  prescribed  by  the  laws  of 
the  State  in  which  the  courts  are  held.  (Act  March  9, 
1892,  c.  14,  27  Stat.  7,  U.  S.  Comp.  St.  §  1476.) 

7.  THE  HANDWRITING  ACT 

ACT  FEB.  26,  1913  (37  Stat.  683  [U.  S.  Comp.  St.  §  1471]). 
An  Act  relating  to  proof  of  signatures  and  handwriting. 

Comparison  of  handwriting — In  any  proceeding  before  a 
court  or  judicial  officer  of  the  United  States  where  the  gen- 
uineness of  the  handwriting  of  any  person  may  be  involved, 
any  admitted  or  proved  handwriting  of  such  person  shall 
be  competent  evidence  as  a  basis  for  comparison  by  wit- 
nesses, or  by  the  jury,  court,  or  officer  conducting  such 
proceeding,  to  prove  or  disprove  such  genuineness.  (Feb. 
26,  1913,  c.  79,  37  Stat.  683,  U.  S.  Comp.  St.  §  1471.) 


Appdx.)  FORMA  PAUPERIS  505 

S.  SUITS  IN  FORMA  PAUPERIS  (27  Stat.  252,  amended 
36  Stat.  866  [U.  S.  Comp.  St.  §  1-626]) 

An  Act  to  amend  section  one,  chapter  two  hundred  and 
nine  of  the  United  States  Statutes  at  Large,  volume 
twenty-seven,  entitled  ''An  Act  providing  when  plaintiff 
may  sue  as  a  poor  person  and  when  counsel  shall  be  as- 
signed by  the  court,"  and  to  provide  for  the  prosecution 
of  writs  of  error  and  appeals  in  forma  pauperis,  and  for 
other  purposes. 

Suits  by  poor  persons;  prepayment  of  or  security  for 
fees  or  costs ;  affidavit  of  poverty — Any  citizen  of  the  Unit- 
ed States  entitled  to  commence  or  defend  any  suit  or  action, 
civil  or  criminal,  in  any  court  of  the  United  States,  may, 
upon  the  order  of  the  court,  commence  and  prosecute  or  de- 
fend to  conclusion  any  suit  or  action,  or  a  writ  of  error, 
or  an  appeal  to  the  circuit  court  of  appeals,  or  to  the  Su- 
preme Court  in  such  suit  or  action,  including  all  appellate 
proceedings,  unless  the  trial  court  shall  certify  in  writing 
that  in  the  opinion  of  the  court  such  appeal  or  writ  of  er- 
ror is  not  taken  in  good  faith,  without  being  required  to 
prepay  fees  or  costs  or  for  the  printing  of  the  record  in  the 
appellate  court  or  give  security  therefor,  before  or  after 
bringing  suit  or  action,  or  upon  suing  out  a  writ  of  error 
or  appealing,  upon  filing  in  said  court  a  statement  under 
oath  in  writing  that  because  of  his  poverty  he  is  unable  to 
pay  the  costs  of  said  suit  or  action  or  of  such  writ  of  error 
or  appeal,  or  to  give  security  for  the  same,  and  that  he  be- 
lieves that  he  is  entitled  to  the  redress  he  seeks  by  such 
suit  or  action  or  writ  of  error  or  appeal,  and  setting  forth 
briefly  the  nature  of  his  alleged  cause  of  action,  or  appeal. 
(Act  July  20,  1892,  c.  209,  §  1,  27  Stat.  252,  amended  Act 
June  25,  1910,  c.  435,  36  Stat.  866,  U.  S.  Comp.  St.  §  1626.) 


506  SUITS  AGAINST   UNITED   STATES  (Appdx. 

9.  CERTAIN    ADMIRALTY    SUITS    AGAINST    THE 
UNITED  STATES 
[Public — No.  156 — 65th  Congress.] 
[S.  3076.] 
An  Act  Authorizing  suits  against  the  United  States  in  ad- 
miralty, suits  for  salvage  services,  and  providing  for  the 
release  of  merchant  vessels  belonging  to  the  United  States 
from   arrest  and   attachment   in   foreign  jurisdictions,   and 
for  other  purposes. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives 
of  the  United  States  of  America  in  Congress  assembled,  That 
no  vessel  owned  by  the  United  States  or  by  any  corporation 
in  which  the  United  States  or  its  representatives  shall  own 
the  entire  outstanding  capital  stock  or  in  the  possession  of 
the  United  States  or  of  such  corporation  or  operated  by  or 
for  the  United  States  or  such  corporation,  and  no  cargo  own- 
ed or  possessed  by  the  United  States  or  by  such  corporation, 
shall  hereafter,  in  view  of  the  provision  herein  made  for  a 
libel  in  personam,  be  subject  to  arrest  or  seizure  by  judicial 
process  in  the  United  States  or  its  possessions:  Provided, 
That  this  Act  shall  not  apply  to  the  Panama  Railroad  Com- 
pany. 

Sec.  2.  That  in  cases  where  if  such  vessel  were  privately 
owned  or  operated,  or  if  such  cargo  were  privately  owned 
and  possessed,  a  proceeding  in  admiralty  could  be  maintain- 
ed at  the  time  of  the  commencement  of  the  action  .herein 
provided  for,  a  libel  in  personam  may  be  brought  against 
the  United  States  or  against  such  corporation,  as  the  case 
may  be,  provided  that  such  vessel  is  employed  as  a  merchant 
vessel  or  is  a  tug  boat  operated  by  such  corporation.  Such 
suits  shall  be  brought  in  the  district  court  of  the  United 
States  for  the  district  in  which  the  parties  so  suing,  or  any 
of  them,  reside  or  have  their  principal  place  of  business  in 
the  United  States,  or  in  which  the  vessel  or  cargo  charged 
with  liabilitv  is  found.     The  libelant  shall  forthwith  serve  a 


Appdx.)  SUITS  AGAINST    UNITED   STATES  507 

copy  of  his  libel  on  the  United  States  attorney  for  such  dis- 
trict and  mail  a  copy  thereof  by  registered  mail  to  the  At- 
torney General  of  the  United  States,  and  shall  file  a  sworn 
return  of  such  service  and  mailing.  Such  service  and  mail- 
ing shall  constitute  valid  service  on  the  United  States  and 
such  corporation.  In  case  the  United  States  or  such  corpo- 
ration shall  file  a  libel  in  rem  or  in  personam  in  any  district, 
a  cross-libel  in  personam  may  be  filed  or  a  set-off  claimed 
against  the  United  States  or  such  corporation  with  the  same 
force  and  effect  as  if  the  libel  had  been  filed  by  a  private 
party.  Upon  application  of  either  party  the  cause  may,  in 
the  discretion  of  the  court,  be  transferred  to  any  other  dis- 
trict court  of  the  United  States. 

Sec.  3.  That  such  suits  shall  proceed  and  shall  be  heard 
and  determined  according  to  the  principles  of  law  and  to 
the  rules  of  practice  obtaining  in  like  cases  between  private 
parties.  A  decree  against  the  United  States  or  such  corpo- 
ration may  include  costs  of  suit,  and  when  the  decree  is  for 
a  money  judgment,  interest  at  the  rate  of  4  per  centum  per 
annum  until  satisfied,  or  at  any  higher  rate  which  shall  be 
stipulated  in  any  contract  upon  which  such  decree  shall  be 
based.  Interest  shall  run  as  ordered  by  the  court.  Decrees 
shall  be  subject  to  appeal  and  revision  as  now  provided  in 
other  cases  of  admiralty  and  maritime  jurisdiction.  If  the 
libelant  so  elects  in  his  libel  the  suit  may  proceed  in  accord- 
ance with  the  principles  of  libels  in  rem  wherever  it  shall 
appear  that  had  the  vessel  or  cargo  been  privately  owned  and 
possessed  a  libel  in  rem  might  have  been  maintained.  Elec- 
tion so  to  proceed  shall  not  preclude  the  libelant  in  any  prop- 
er case  from  seeking  relief  in  personam  in  the  same  suit. 
Neither  the  United  States  nor  such  corporation  shall  be  re- 
quired to  give  any  hond  or  admiralty  stipulation  on  any  pro- 
ceeding brought  hereunder.  Any  such  bond  or  stipulation 
heretofore  given  in  admiralty  causes  by  the  United  States,  the 
United  States  Shipping  Board,  or  the  United  States  Ship 
ping  Board  Emergency  Fleet  Corporation,  shall  become  void 


508  SUITS   AGAINST   UNITED   STATES  (Appdx. 

and  be  surrendered  and  canceled  upon  the  filing  of  a  sug- 
gestion by  the  Attorney  General  or  other  duly  authorized 
law  officer  that  the  United  States  is  interested  in  such  cause, 
and  assumes  liability  to  satisfy  any  decree  included  within 
said  bond  or  stipulation,  and  thereafter  any  such  decree  shall 
be  paid  as  provided  in  section  8  of  this  Act. 

Sec.  4.  That  if  a  privately  owned  vessel  not  in  the  pos- 
session of  the  United  States  or  of  such  corporation  is  ar- 
rested or  attached  upon  any  cause  of  action  arising  or  al- 
leged to  have  arisen  from  previous  possession,  ownership,  or 
operation  of  such  vessel  by  the  United  States  or  by  such  cor- 
poration, such  vessel  shall  be  released  without  bond  or  stip- 
ulation therefor  upon  the  suggestion  by  the  United  States, 
through  its  Attorney  General  or  other  duly  authorized  law 
officer,  that  it  is  interested  in  such  cause,  desires  such  re- 
lease, and  assumes  the  liability  for  the  satisfaction  of  any 
decree  obtained  by  the  libelant  in  such  cause,  and  thereafter 
such  cause  shall  proceed  against  the  United  States  in  ac- 
cordance with  the  provisions  of  this  Act. 

Sec.  5.  That  suits  as  herein  authorized  may  be  brought 
only  on  causes  of  action  arising  since  April  6,  1917,  provided 
that  suits  based  on  causes  of  action  arising  prior  to  the  tak- 
ing effect  of  this  Act  shall  be  brought  within  one  year  after 
this  Act  goes  into  effect;  and  all  other  suits  hereunder  shall 
be  brought  within  two  years  after  the  cause  of  action  arises. 

Sec.  6.  That  the  United  States  or  such  corporation  shall 
be  entitled  to  the  benefits  of  all  exemptions  and  of  all  limi- 
tations of  liability  accorded  by  law  to  the  owners,  charterers, 
operators,  or  agents  of  vessels. 

Sec.  7.  That  if  any  vessel  or  cargo  within  the  purview  of 
sections  1  and  4  of  this  Act  is  arrested,  attached,  or  other- 
wise seized  by  process  of  any  court  in  any  country  other 
than  the  United  States,  or  if  any  suit  is  brought  therein  against 
the  master  of  any  such  vessel  for  any  cause  of  action  aris- 
ing from,  or  in  connection  with,  the  possession,  operation, 
or  ownership  of  any  such  vessel,  or  the  possession,  carriage, 


Appdx.)  SUITS  AGAINST   UNITED   STATES  509 

or  ownership  of  any  such  cargo,  the  Secretary  of  State  of 
the  United  States  in  his  discretion,  upon  the  request  of  the 
Attorney  General  of  the  United  States,  or  any  other  officer 
duly  authorized  by  him,  may  direct  the  United  States  con- 
sul residing  at  or  nearest  the  place  at  which  such  action  may 
have  been  commenced  to  claim  such  vessel  or  cargo  as  im- 
mune from  such  arrest,  attachment,  or  other  seizure,  and  to 
execute  an  agreement,  undertaking,  bond,  or  stipulation  for 
and  on  behalf  of  the  United  States,  or  the  United  States 
Shipping  Board,  or  such  corporation  as  by  said  court  re- 
quired, for  the  release  of  such  vessel  or  cargo,  and  for  the 
prosecution  of  any  appeal;  or  may,  in  the  event  of  such 
suits  against  the  master  of  any  such  vessel,  direct  said  United 
States  consul  to  enter  the  appearance  of  the  United  States, 
or  of  the  United  States  Shipping  Board,  or  of  such  corpora- 
tion, and  to  pledge  the  credit  thereof  to  the  payment  of  any 
judgment  and  cost  that  may  be  entered  in  such  suit.  The 
Attorney  General  is  hereby  vested  with  power  and  authority 
to  arrange  with  any  bank,  surety  company,  person,  firm,  or 
corporation  in  the  United  States,  its  Territories  and  pos- 
sessions, or  in  any  foreign  country,  to  execute  any  such  afore- 
said bond  or  stipulation  as  surety  or  stipulator  thereon,  and 
to  pledge  the  credit  of  the  United  States  to  the  indemnifica- 
tion of  such  surety  or  stipulator  as  may  be  required  to  secure 
the  execution  of  such  bond  or  stipulation.  The  presentation 
of  a  copy  of  the  judgment  roll  in  any  such  suit,  certified  by 
the  clerk  of  the  court  and  authenticated  by  the  certificate 
and  seal  of  the  United  States  consul  claiming  such  vessel  or 
cargo,  or  his  successor,  and  by  the  certificate  of  the  Secre- 
tary of  State  as  to  the  official  capacity  of  such  consul,  shall 
be  sufficient  evidence  to  the  proper  accounting  officers  of  the 
United  States,  or  of  the  United  States  Shipping  Board,  or 
of  such  corporation,  for  the  allowance  and  payment  of  such 
judgments:  Provided,  however,  That  nothing  in  this  sec- 
tion shall  be  held  to  prejudice  or  preclude  a  claim  of  the  im- 


jIO  suits  against  united  states  (Appdx. 

munity  of  such  vessel  or  cargo  from  foreign  jurisdiction  in 
a  proper  case. 

Sec.  8.  That  any  final  judgment  rendered  in  any  suit 
herein  authorized,  and  any  final  judgment  within  the  purview 
of  sections  4  and  7  of  this  Act,  and  any  arbitration  award 
or  settlement  had  and  agreed  to  under  the  provisions  of  sec- 
tion 9  of  this  Act,  shall,  upon  the  presentation  of  a  duly 
authenticated  copy  thereof,  be  paid  by  the  proper  accounting 
officers  of  the  United  States  out  of  any  appropriation  or 
insurance  fund  or  other  fund  especially  available  therefor ; 
otherwise  there  is  hereby  appropriated,  out  of  any  money  in 
the  Treasury  of  the  United  States  not  otherwise  appropri- 
ated, a  sum  sufficient  to  pay  any  such  judgment  or  award  or 
settlement. 

Sec.  9.  That  the  Secretary  of  any  department  of  the 
Government  of  the  United  States,  or  the  United  States  Ship- 
ping Board,  or  the  board  of  trustees  of  such  corporation, 
having  control  of  the  possession  or  operation  of  any  merchant 
vessel  are,  and  each  hereby  is,  authorized  to  arbitrate,  com- 
promise, or  settle  any  claim  in  which  suit  will  lie  under  the 
provisions  of  sections  2,  4,  7,  and  10  of  this  Act. 

Sec.  10.  That  the  United  States,  and  the  crew  of  any 
merchant  vessel  owned  or  operated  by  the  United  States,  or 
such  corporation,  shall  have  the  right  to  collect  and  sue  for 
salvage  services  rendered  by  such  vessel  and  crew,  and  any 
moneys  recovered  therefrom  by  the  United  States  for  its 
own  benefit,  and  not  for  the  benefit  of  the  crew,  shall  be  cov- 
ered into  the  United  States  Treasury  to  the  credit  of  the 
department  of  the  Government  of  the  United  States  or  of 
the  United  States  Shipping  Board,  or  of  such  corporation, 
having  control  of  the  possession  or  operation  of  such  vessel. 

Sec.  11.  That  all  moneys  recovered  in  any  suit  brought 
by  the  United  States  on  any  cause  of  action  arising  from,  or 
in  connection  with,  the  possession,  operation,  or  ownership 
of  any  merchant  vessel,  or  the  possession,  carriage,  or  owner- 
ship of  any  cargo,  shall  be  covered  into  the  United  States 


Appdx.)  ADMIRALTY   RULES  511 

Treasury  to  the  credit  of  the  Department  of  the  Government 
of  the  United  States,  or  of  the  United  States  Shipping  Board, 
or  of  such  aforesaid  corporation,  having  control  of  the  ves- 
sel or  cargo  with  respect  to  which  such  cause  of  action 
arises,  for  reimbursement  of  the  appropriation,  or  insurance 
fund,  or  other  funds,  from  which  the  loss,  damage,  or  com- 
pensation for  which  said  judgment  was  recovered  has  been 
or  will  be  paid. 

Sec.  12.  That  the  Attorney  General  shall  report  to  the 
Congress  at  each  session  thereof  the  suits  under  this  Act  in 
which  final  judgment  shall  have  been  rendered  for  or  against 
the  United  States  and  such  aforesaid  corporation,  and  the 
Secretary  of  any  department  of  the  Government  of  the  United 
States,  and  the  United  States  Shipping  Board,  and  the  board 
of  trustees  of  any  such  aforesaid  corporation,  shall  likewise 
report  the  arbitration  awards  or  settlements  of  claims  which 
shall  have  been  agreed  to  since  the  previous  session,  and  in 
which  the  time  to  appeal  shall  have  expired  or  have  been 
waived. 

Sec.  13.  That  the  provisions  of  all  other  Acts  inconsistent 
herewith  are  hereby  repealed. 

Approved,  March  9,  1920. 

10.  THE  ADMIRALTY  RULES  OF  PRACTICE 
(29  Sup.  Ct.  xxxix) 

(The  Captions  are  Added  for  Convenience  of  Reference.) 
Rules  of  Practice  for  the  Courts  of  the  United  States  in 

Admiralty   and    Maritime   Jurisdiction,    on   the    Instance 

Side  of  the  Court,  in  Pursuance  of  the  Act  of  the  23d  of 

August,   1842,  chapter  188. 

1.  [Process  on  filing  libel.]  No  mesne  process  shall  is- 
sue from  the  District  Courts  in  any  civil  cause  of  admiralty 
and  maritime  jurisdiction  until  the  libel,  or  libel  of  informa- 
tion, shall  be  filed  in  the  clerk's  office  from  which  such  pro- 
cess is  to  issue.  All  process  shall  be  served  by  the  marshal 
or  by  his  deputy,  or,  where  he  or  they  are  interested,  by 


512  ADMIRALTY   RULES  (Appdx. 

some    discreet    and    disinterested    person    appointed    by    the 
court. 

2.  [Process  in  suits  in  personam.]  In  suits  in  personam, 
the  mesne  process  may  be  by  a  simple  warrant  of  arrest  of 
the  person  of  the  defendant,  in  the  nature  of  a  capias,  or  by 
a  warrant  of  arrest  of  the  person  of  the  defendant,  with  a 
clause  therein,  that  if  he  cannot  be  found,  to  attach  his 
goods  and  chattels  to  the  amount  sued  for,  or  if  such  prop- 
erty cannot  be  found,  to  attach  his  credits  and  effects  to 
the  amount  sued  for  in  the  hands  of  the  garnishees  named 
therein;  or  by  a  simple  monition,  in  the  nature  of  a  sum- 
mons to  appear  and  answer  to  the  suit,  as  the  libellant  shall, 
in  his  libel  or  information,  pray  for  or  elect. 

3.  [Bail  in  suits  in  personam.]  In  all  suits  in  personam, 
where  a  simple  warrant  of  arrest  issues  and  is  executed,  the 
marshal  may  take  bail,  with  sufficient  sureties,  from  the  par- 
ty arrested,  by  bond  or  stipulation,  upon  condition  that  he 
will  appear  in  the  suit  and  abide  by  all  orders  of  the  court, 
interlocutory  or  final,  in  the  cause,  and  pay  the  money 
awarded  by  the  final  decree  rendered  therein  in  the  court 
to  which  the  process  is  returnable,  or  in  any  appellate  court. 
And  upon  such  bond  or  stipulation  summary  process  of 
execution  may  and  shall  be  issued  against  the  principal  and 
sureties  by  the  court  to  which  such  process  is  returnable, 
to  enforce  the  final  decree  so  rendered,  or  upon  appeal  by 
the  appellate  court. 

4.  [Bond  in  attachment  suits  in  personam.]  In  all  suits 
in  personam,  where  goods  and  chattels,  or  credits  and  ef- 
fects, are  attached  under  such  warrant  authorizing  the  same, 
the  attachment  may  be  dissolved  by  order  of  the  court  to 
which  the  same  warrant  is  returnable,  upon  the  defendant 
whose  property  is  so  attached  giving  a  bond  or  stipula- 
tion, with  sufficient  sureties,  to  abide  by  all  orders,  inter- 
locutory or  final,  of  the  court,  and  pay  the  amount  awarded 
by  the  final  decree  rendered  in  the  court  to  which  the 
process  is  returnable,  or  in  any  appellate  court;    and  upon 


Appdx.)  ADMIRALTY  RULES  513 

such  bond  or  stipulation,  summary  process  of  execution 
shall  and  may  be  issued  against  the  principal  and  sureties 
by  the  court  to  which  such  warrant  is  returnable,  to  enforce 
the  final  decree  so  rendered,  or  upon  appeal  by  the  appel- 
late court. 

5.  [Bonds — Before  whom  given.]  Bonds  or  stipulations 
in  admiralty  suits  may  be  given  and  taken  in  open  court, 
or  at  chambers,  or  before  any  commissioner  of  the  court 
who  is  authorized  by  the  court  to  take  affidavits  of  bail  and 
depositions  in  cases  pending  before  the  court,  or  any  com- 
missioner of  the  United  States  authorized  hy  law  to  take 
bail  and  affidavits  in  civil  cases. 

6.  [Reduction  of  bail — New  sureties.]  In  all  suits  in  per- 
sonam, where  bail  is  taken,  the  court  may,  upon  motion,  for 
due  cause  shown,  reduce  the  amount  of  the  sum  contained 
in  the  bond  or  stipulation  therefor ;  and  in  all  cases  where 
a  bond  or  stipulation  is  taken  as  bail,  or  upon  dissolving  an 
attachment  of  property  as  aforesaid,  if  either  of  the  sure- 
ties shall  become  insolvent  pending  the  suit,  new  sureties 
may  be  required  by  the  order  of  the  court,  to  be  given,  upon 
motion,  and  due  proof  thereof. 

7.  [When  special  order  necessary  for  warrant  of  arrest.] 
In  suits  in  personam,  no  warrant  of  arrest,  either  of  the  per- 
son or  property  of  the  defendant,  shall  issue  for  a  sum 
exceeding  five  hundred  dollars,  unless  by  the  special  order 
of  the  court,  upon  affidavit  or  other  proper  proof  showing 
the  propriety  thereof. 

8.  [Monition  to  third  parties  in  suits  in  rem.]  In  all  suits 
in  rem  against  a  ship,  her  tackle,  sails,  apparel,  furniture, 
boats,  or  other  appurtenances,  if  such  tackle,  sails,  apparel, 
furniture,  boats,  or  other  appurtenances  are  in  the  posses- 
sion or  custody  of  any  third  person,  the  court  may,  after 
a  due  monition  to  such  third  person,  and  a  hearing  of  the 
cause,  if  any,  why  the  same  should  not  be  delivered  over, 
award  and  decree  that  the  same  be  delivered  into  the  cus- 

Hughes,Adm.(2d  Ed.)— 33 


."14  ADMIRALTY    RULES  (App&X. 

tody  of  the  marshal  or  other  proper  officer,  if,  upon  the  hear- 
ing, the  same  is  required  by  law  and  justice. 

9.  [Process  in  suits  in  rem.]  In  all  cases  of  seizure,  and 
in  other  suits  and  proceedings  in  rem,  the  process,  unless 
otherwise  provided  for  by  statute,  shall  be  by  a  warrant  of 
arrest  of  the  ship,  goods,  or  other  thing  to  be  arrested ;  and 
the  marshal  shall  thereupon  arrest  and  take  the  ship,  goods, 
or  other  thing  into  his  possession  for  safe  custody  and  shall 
cause  public  notice  thereof  and  of  the  time  assigned  for  the 
return  of  such  process  and  the  hearing  of  the  cause,  to  be 
given  in  such  newspaper  within  the  district  as  the  district 
court  shall  order;  and  if  there  is  no  newspaper  published 
therein,  then  in  such  other  public  places  in  the  district  as 
the  court  shall  direct. 

10.  [Perishable  goods — How  disposed  of.]  In  all  cases 
where  any  goods  or  other  things  are  arrested,  if  the  same 
are  perishable,  or  are  liable  to  deterioration,  decay,  or  in- 
jury, by  being  detained  in  custody  pending  the  suit,  the 
court  may,  upon  the  application  of  either  party,  in  its  dis- 
cretion, order  the  same  or  so  much  thereof  to  be  sold  as 
shall  be  perishable  or  liable  to  depreciation,  decay,  or  injury ; 
and  the  proceeds,  or-so  much  thereof  as  shall  be  a  full  se- 
curity to  satisfy  in  decree,  to  be  brought  into  court  to  abide 
the  event  of  the  suit;  or  the  court  may,  upon^the  appli- 
cation of  the  claimant,  order  a  delivery  thereof  to  him,  upon 
a  due  appraisement,  to  be  had  under  its  direction,  either  up- 
on the  claimant's  depositing  in  court  so  much  money  as  the 
court  shall  order,  or  upon  his  giving  a  stipulation,  with  sure- 
ties, in  such  sum  as  the  court  shall  direct,  to  abide  by  and 
pay  the  money  awarded  by  the  final  decree  rendered  by  the 
court,  or  the  appellate  court,  if  any  appeal  intervenes,  as  the 
one  or  the  other  course  shall  be  ordered  by  the  court. 

11.  [Ship — How  appraised  or  sold.]  In  like  manner, 
where  any  ship  shall  be  arrested,  the  same  may,  upon  the 
application  of  the  claimant,  be  delivered  to  him  upon  a  due 
appraisement,  to  be  had  under  the  direction  of  the  court, 


Appdx.)  ADMIRALTY   RULES  515 

upon  the  claimant's  depositing  in  court  so  much  money  as 
the  court  shall  order,  or  upon  his  giving  a  stipulation,  with 
sureties,  as  aforesaid ;  and  if  the  claimant  shall  decline  any 
such  application,  then  the  court  may,  in  its  discretion,  upon 
the  application  of  either  party,  upon  due  cause  shown,  or- 
der a  sale  of  such  ship,  and  the  proceeds  thereof  to  be 
brought  into  court  or  otherwise  disposed  of,  as  it  may  deem 
most  for  the  benefit  of  all  concerned. 

12.  [Material-men — Remedies.]  In  all  suits  by  material- 
men for  supplies  or  repairs,  or  other  necessaries,  the  libel- 
lant  may  proceed  against  the  ship  and  freight  in  rem,  or 
against  the  master  or  owner  alone  in  personam. 

13.  [Seamen's  wages — Remedies.]  In  all  suits  for  mar- 
iners' wages,  the  libellant  may  proceed  against  the  ship, 
freight,  and  master,  or  against  the  ship  and  freight,  or 
against  the  owner  or  the  master  alone  in  personam. 

14.  [Pilotage — Remedies.]  In  all  suits  for  pilotage  the 
libellant  may  proceed  against  the  ship  and  master,  or 
against  the  ship,  or  against  the  owner  alone  or  the  master 
alone  in  personam. 

15.  [Collision — Remedies.]  In  all  suits  for  damage  by 
collision,  the  libellant  may  proceed  against  the  ship  and 
master,  or  against  the  ship  alone,  or  against  the  master  or 
the  owner  alone  in  personam. 

16.  [Assault  or  beating — Remedies.]  In  all  suits  for  an 
assault  or  beating  on  the  high  seas,  or  elsewhere  within  the 
admiralty  and  maritime  jurisdiction,  the  suit  shall  be  in  per- 
sonam only. 

17.  [Maritime  hypothecation — Remedies.]  In  all  suits 
against  the  ship  or  freight,  founded  upon  a  mere  maritime 
hypothecation,  either  express  or  implied,  of  the  master,  for 
moneys  taken  up  in  a  foreign  port  for  supplies  or  repairs 
or  other  necessaries  for  the  voyage,  without  any  claim  of 
marine  interest,  the  libellant  may  proceed  either  in  rem  or 
against  the  master  or  the  owner  alone  in  personam. 

18.  [Bottomry  bonds— Remedies.]     In  all  suits  on  bot- 


516  ADMIRALTY  RULES  (Appdx. 

tomry  bonds,  properly  so  called,  the  suit  shall  be  in  rem 
only  against  the  property  hypothecated,  or  the  proceeds  of 
the  property,  in  whosesoever  hands  the  same  may  be  found, 
unless  the  master  has,  without  authority,  given  the  bottom- 
ry bond,  or  by  his  fraud  or  misconduct  has  avoided  the 
same,  or  has  subtracted  the  property,  or  unless  the  owner 
has,  by  his  own  misconduct  or  wrong,  lost  or  subtracted 
the  property,  in  which  latter  cases  the  suit  may  be  in  per- 
sonam against  the  wrong-doer. 

19.  [Salvage — Remedies.]  In  all  suits  for  salvage,  the 
suit  may  be  in  rem  against  the  property  saved,  or  the  pro- 
ceeds thereof,  or  in  personam  against  the  party  at  whose 
request  and  for  whose  benefit  the  salvage  service  has  been 
performed. 

20.  [Petitory  or  possessory  suits.]  In  all  petitory  and 
possessory  suits  between  part  owners  or  adverse  proprietors, 
or  by  the  owners  of  a  ship  or  the  majority  thereof,  against 
the  master  of  a  ship,  for  the  ascertainment  of  the  title  and 
delivery  of  the  possession,  or  for  the  possession  only,  or  by 
one  or  more  part  owners  against  the  others  to  obtain  secu- 
rity for  the  return  of  the  ship  from  any  voyage  undertaken 
without  their  consent,  or  by  one  or  more  part  owners 
against  the  others  to  obtain  possession  of  the  ship  for  any 
voyage,  upon  giving  security  for  the  safe  return  thereof,  the 
process  shall  be  by  an  arrest  of  the  ship,  and  by  a  moni- 
tion to  the  adverse  party  or  parties  to  appear  and  make  an- 
swer to  the  suit. 

21.  [Execution  on  decrees.]  In  all  cases  of  a  final  decree 
for  the  payment  of  money,  the  libellant  shall  have  a  writ 
of  execution,  in  the  nature  of  a  fieri  facias,  commanding  the 
marshal  or  his  deputy  to  levy  and  collect  the  amount  there- 
of out  of  the  goods  and  chattels,  lands  and  tenements,  or 
other  real  estate,  of  the  defendant  or  stipulators. 

22.  [Requisites  of  libel  of  information.]  All  informations 
and  libels  of  information  upon  seizures  for  any  breach  of 
the   revenue,  or  navigation,  or  other  laws  of  the  United 


Appdx.)  ADMIRALTY   RULES  517 

States,  shall  state  the  place  of  seizure,  whether  it  be  on  land 
or  on  the  high  seas,  or  on  navigable  waters  within  the  ad- 
miralty and  maritime  jurisdiction  of  the  United  States,  and 
the  district  within  which  the  property  is  brought  and  where 
it  then  is.  The  information  or  libel  of  information  shall 
also  propound  in  distinct  articles  the  matters  relied  on  as 
grounds  or  causes  of  forfeiture,  and  aver  the  same  to  be 
contrary  to  the  form  of  the  statute  or  statutes  of  the  United 
States  in  such  case  provided,  as  the  case  may  require,  and 
shall  conclude  with  a  prayer  of  due  process  to  enforce  the 
forfeiture,  and  to  give  notice  to  all  persons  concerned  in 
interest  to  appear  and  show  cause  at  the  return-day  of  the 
process  why  the  forfeiture  should  not  be  decreed. 

23.  [Requisites  of  libel  in  instance  causes.]  All  libels  in 
instance  causes,  civil  or  maritime,  shall  state  the  nature  of 
the  cause ;  as,  for  example,  that  it  is  a  cause,  civil  and 
maritime,  of  contract,  or  of  tort  or  damage,  or  of  salvage, 
or  of  possession,  or  otherwise,  as  the  case  may  be;  and,  if 
the  libel  be  in  rem,  that  the  property  is  within  the  district ; 
and,  if  in  personam,  the  names  and  occupations  and  places 
of  residence  of  the  parties.  The  libel  shall  also  propound 
and  articulate  in  distinct  articles  the  various  allegations  of 
fact  upon  which  the  libellant  relies  in  support  of  his  suit, 
so  that  the  defendant  may  be  enabled  to  answer  distinctly 
and  separately  the  several  matters  contained  in  each  ar- 
ticle; and  it  shall  conclude  with  a  prayer  of  due  process 
to  enforce  his  rights,  in  rem  or  in  personam  (as  the  case 
may  require),  and  for  such  relief  and  redress  as  the  court  is 
competent  to  give  in  the  premises.  And  the  libellant  may 
further  require  the  defendant  to  answer  on  oath  all  inter- 
rogatories propounded  by  him  touching  all  and  singular 
the  allegations  in  the  libel  at  the  close  or  conclusion 
thereof. 

24.  [Amendments  to  libels.]  In  all  informations  and  li- 
bels in  causes  of  admiralty  and  maritime  jurisdiction, 
amendments  in  matters  of  form  may  be  made  at  any  time, 


518  ADMIRALTY   RULES  (Appdx. 

on  motion  to  the  court,  as  of  course.  And  new  counts  may 
be  filed,  and  amendments  in  matters  of  substance  may  be 
made,  upon  motion,  at  any  time  before  the  final  decree,  up- 
on such  terms  as  the  court  shall  impose.  And  where  any 
defect  of  form  is  set  down  by  the  defendant  upon  special 
exceptions,  and  is  allowed,  the  court  may,  in  granting  leave 
to  amend,  impose  terms  upon  the  libellant. 

25.  [Stipulation  for  costs  by  defendant.]  In  all  cases  of 
libels  in  personam,  the  court  may,  in  its  discretion,  upon 
the  appearance  of  the  defendant,  where  no  bail  has  been 
taken,  and  no  attachment  of  property  has  been  made  to 
answer  the  exigency  of  the  suit,  require  the  defendant  to 
give  a  stipulation,  with  sureties,  in  such  sum  as  the  court 
shall  direct,  to  pay  all  costs  and  expenses  which  shall  be 
awarded  against  him  in  the  suit,  upon  the  final  adjudica- 
tion thereof,  or  by  any  interlocutory  order  in  the  progress 
of  the  suit. 

26.  [Claim — How  verified.]  In  suits  in  rem,  the  party 
claiming  the  property  shall  verify  his  claim  on  oath  or 
solemn  affirmation,  stating  that  the  claimant  by  whom  or 
on  whose  behalf  the  claim  is  made  is  the  true  and  bona  fide 
owner,  and  that  no  other  person  is  the  owner  thereof.  And, 
where  the  claim  is  put  in  by  an  agent  or  consignee,  he  shall 
also  make  oath  that  he  is  duly  authorized  thereto  by  the 
owner;  or,  if  the  property  be,  at  the  time  of  the  arrest,  in 
the  possession  of  the  master  of  a  ship,  that  he  is  the  lawful 
bailee  thereof  for  the  owner.  And,  upon  putting  in  such 
claim,  the  claimant  shall  file  a  stipulation,  with  sureties,  in 
such  sum  as  the  court  shall  direct,  for  the  payment  of  all 
costs  and  expenses  which  shall  be  awarded  against  him  by 
the  final  decree  of  the  court,  or,  upon  an  appeal,  by  the  ap- 
pellate court. 

27.  [Answer — Requisites  of.]  In  all  libels  in  causes  of 
civil  and  maritime  jurisdiction,  whether  in  rem  or  in  per- 
sonam, the  answer  of  the  defendant  to  the  allegations  in  the 
libel  shall  be  on  oath  or  solemn  affirmation  ;   and  the  answer 


Appdx.)  ADMIRALTY    RULES  519 

shall  be  full  and  explicit,  and  distinct  to  each  separate  ar- 
ticle and  separate  allegation  in  the  libel,  in  the  same  order 
as  numbered  in  the  libel,  and  shall  also  answer  in  like  man- 
ner each  interrogatory  propounded  at  the  close  of  the  libel. 

28.  [Answer — Exceptions  to.]  The  libellant  may  except 
to  the  sufficiency,  or  fullness,  or  distinctness,  or  relevancy  of 
the  answer  to  the  articles  and  interrogatories  in  the  libel ; 
and,  if  the  court  shall  adjudge  the  same  exceptions,  or  any 
of  them,  to  be  good  and  valid,  the  court  shall  order  the  de- 
fendant forthwith,  within  such  time  as  the  court  shall  di- 
rect, to  answer  the  same,  and  may  further  order  the  de- 
fendant to  pay  such  costs  as  the  court  shall  adjudge  rea- 
sonable. 

29.  [Default  on  failure  to  answer.]  If  the  defendant 
shall  omit  or  refuse  to  make  due  answer  to  the  libel  upon 
the  return-day  of  the  process,  or  other  day  assigned  by  the 
court,  the  court  shall  pronounce  him  to  be  in  contumacy 
and  default;  and  thereupon  the  libel  shall  be  adjudged  to 
be  taken  pro  confesso  against  him,  and  the  court  shall  pro- 
ceed to  hear  the  cause  ex  parte,  and  adjudge  therein  as  to 
law  and  justice  shall  appertain.  But  the  court  may,  in  its 
discretion,  set  aside  the  default,  and,  upon  the  application 
of  the  defendant,  admit  him  to  make  answer  to  the  libel,  at 
any  time  before  the  final  hearing  and  decree,  upon  his  pay- 
ment of  all  the  costs  of  the  suit  up  to  the  time  of  granting 
leave  therefor. 

30.  [Effect  of  failure  to  answer  fully.]  In  all  cases  where 
the  defendant  answers,  but  does  not  answer  fully  and  ex- 
plicitly and  distinctly  to  all  the  matters  in  any  article  of  the 
libel,  and  exception  is  taken  thereto  by  the  libellant,  and  the 
exception  is  allowed,  the  court  may,  by  attachment,  com- 
pel the  defendant  to  make  further  answer  thereto,  or  may 
direct  the  matter  of  the  exception  to  be  taken  pro  confesso 
against  the  defendant,  to  the  full  purport  and  effect  of  the 
article  to  which  it  purports  to  answer,  and  as  if  no  answer 
had  been  put  in  thereto. 


520  'admiralty  rules  (Appdx. 

31.  [What  defendant  may  object  to  answering.]  The  de- 
fendant may  object,  by  his  answer,  to  answer  any  allega- 
tion or  interrogatory  contained  in  the  libel  which  will  ex- 
pose him  to  any  prosecution  or  punishment  for  crime,  or  for 
any  penalty  or  any  forfeiture  of-  his  property  for  any  penal 
offense. 

32.  [Interrogatories  in  answer.]  The  defendant  shall 
have  a  right  to  require  the  personal  answer  of  the  libellant 
upon  oath  or  solemn  affirmation  to  any  interrogatories 
which  he  may,  at  the  close  of  his  answer,  propound  to  the 
libellant  touching  any  matters  charged  in  the  libel,  or  touch- 
ing any  matter  of  defense  set  up  in  the  answer,  subject  to 
the  like  exception  as  to  matters  which  shall  expose  the 
libellant  to  any  prosecution,  or  punishment,  or  forfeiture,  as 
is  provided  in  the  thirty-first  rule.  In  default  of  due  an- 
swer by  the  libellant  to  such  interrogatories  the  court  may 
adjudge  the  libellant  to  be  in  default,  and  dismiss  the  libel, 
or  may  compel  his  answer  in  the  premises,  by  attachment, 
or  take  the  subject-matter  of  the  interrogatory  pro  con- 
fesso  in  favor  of  the  defendant,  as  the  court  in  its  discretion, 
shall  deem  most  fit  to  promote  public  justice. 

33.  [How  verification  of  answer  to  interrogatory  obvi- 
ated.] Where  either  the  libellant  or  the  defendant  is  out 
of  the  country,  or  unable,  from  sickness  or  other  casualty, 
to  make  an  answer  to  any  interrogatory  on  oath  or  solemn 
affirmation  at  the  proper  time,  the  court  may,  in  its  discre- 
tion, in  furtherance  of  the  due  administration  of  justice,  dis- 
pense therewith,  or  may  award  a  commission  to  take  the 
answer  of  the  defendant  when  and  as  soon  as  it  may  be  prac- 
ticable. 

34.  [How  third  party  may  intervene.]  If  any  third  per- 
son shall  intervene  in  any  cause  of  admiralty  and  maritime 
jurisdiction  in  rem  for  his  own  interest,  and  he  is  entitled, 
according  to  the  course  of  admiralty  proceedings,  to  be 
heard  for  his  own  interest  therein,  he  shall  propound  the 
matter  in  suitable  allegations,  to  which,  if  admitted  bv  the 


Appdx.)  ADMIRALTY   RULES  521 

court,  the  other  party  or  parties  in  the  suit  may  be  required, 
by  order  of  the  court,  to  make  due  answer;  and  such  fur- 
ther proceedings  shall  be  had  and  decree  rendered  by  the 
court  therein  as  to  law  and  justice  shall  appertain.  But 
every  such  intervenor  shall  be  required,  upon  filing  his  al- 
legations, to  give  a  stipulation,  with  sureties,  to  abide  by  the 
final  decree  rendered  in  the  cause,  and  to  pay  all  such  costs 
and  expenses  and  damages  as  shall  be  awarded  by  the  court 
upon  the  final  decree,  whether  it  is  rendered  in  the  original 
or  appellate  court. 

35.  [How  stipulation  given  by  intervenor.]  The  stipu- 
lations required  by  the  last  preceding  rule,  or  on  appeal,  or 
in  any  other  admiralty  or  maritime  proceeding,  shall  be 
given  and  taken  in  the  manner  prescribed  by  rule  fifth  as 
amended. 

36.  [Exceptions  to  libel.]  Exceptions  may  be  taken  to 
any  libel,  allegation,  or  answer  for  surplusage,  irrelevancy, 
impertinence,  or  scandal ;  and  if,  upon  reference  to  a  mas- 
ter, the  exception  shall  be  reported  to  be  so  objectionable, 
and  allowed  by  the  court,  the  matter  shall  be  expunged, 
at  the  cost  and  expense  of  the  party  in  whose  libel  or  an- 
swer the  same  is  found. 

37.  [Procedure  against  garnishee.]  In  cases  of  foreign 
attachment,  the  garnishee  shall  be  required  to  answer  on 
oath  or  solemn  affirmation  as  to  the  debts,  credits,  or  ef- 
fects of  the  defendant  in  his  hands,  and  to  such  interroga- 
tories touching  the  same  as  may  be  propounded  by  the  libel- 
lant;  and  if  he  shall  refuse  or  neglect  so  to  do,  the  court 
may  award  compulsory  process  in  personam  against  him. 
If  he  admits  any  debts,  credits,  or  effects,  the  same  shall 
be  held  in  his  hands,  liable  to  answer  the  exigency  of  the 
suit. 

38.  [Bringing  funds  into  court.]  In  cases  of  mariners' 
wages,  or  bottomry,  or  salvage,  or  other  proceeding  in  rem, 
where  freight  or  other  proceeds  of  property  are  attached  to 
or  are  bound  by  the  suit,  which  are  in  the  hands  or  possession 


522  ADMIRALTY    RULES  (Appdx. 

of  any  person,  the  court  may,  upon  clue  application,  by  pe- 
tition of  the  party  interested,  require  the  party  charged  with 
the  possession  thereof  to  appear  and  show  cause  why  the 
same  should  not  be  brought  into  court  to  answer  the  ex- 
igency of  the  suit ;  and  if  no  sufficient  cause  be  shown,  the 
court  may  order  the  same  to  be  brought  into  court  to  an- 
swer the  exigency  of  the  suit,  and  upon  failure  of  the  party 
to  comply  with  the  order,  may  award  an  attachment,  or  oth- 
er compulsive  process,  to  compel  obedience  thereto. 

39.  [Dismissal  for  failure  to  prosecute.]  If,  in  any  ad- 
miralty suit,  the  libellant  shall  not  appear  and  prosecute 
his  suit,  according  to  the  course  and  orders  of  the  court, 
he  shall  be  deemed  in  default  and  contumacy;  and  the 
court  may,  upon  the  application  of  the  defendant,  pronounce 
the  suit  to  be  deserted,  and  the  same  may  be  dismissed  with 
costs. 

40.  [Reopening  default  decrees.]  The  court  may,  in  its 
discretion,  upon  the  motion  of  the  defendant  and  the  pay- 
ment of  costs,  rescind  the  decree  in  any  suit  in  which,  on 
account  of  his  contumacy,  and  default,  the  matter  of  the 
libel  shall  have  been  decreed  against  him,  and  grant  a  re- 
hearing thereof  at  any  time  within  ten  days  after  the  decree 
has  been  entered,  the  defendant  submitting  to  such  fur- 
ther orders  and  terms  in  the  premises  as  the  court  may 
direct. 

41.  [Sales  in  admiralty.]  All  sales  of  property  under  any 
decree  of  admiralty  shall  be  made  by  the  marshal  or  his 
deputy,  or  other  proper  officer  assigned  by  the  court,  where 
the  marshal  is  a  party  in  interest,  in  pursuance  of  the  or- 
ders of  the  court;  and  the  proceeds  thereof,  when  sold, 
shall  be  forthwith  paid  into  the  registry  of  the  court  by  the 
officer  making  the  sale,  to  be  disposed  of  by  the  court  ac- 
cording to  law. 

42.  [Funds  in  court  registry.]  All  moneys  paid  into  the 
registry  of  the  court  shall  be  deposited  in  some  bank  des- 
ignated by  the  court,  and  shall  be  so  deposited  in  the  name 


Appdx.)  ADMIRALTY    RULES 


52:'. 


of  the  court,  and  shall  not  be  drawn  out,  except  by  a  check 
or  checks  signed  by  a  judge  of  the  court  and  countersigned 
by  the  clerk,  stating  on  whose  account  and  for  whose  use 
it  is  drawn,  and  in  what  suit  and  out  of  what  fund  in  par- 
ticular it  is  paid.  The  clerk  shall  keep  a  regular  book,  con- 
taining a  memorandum  and  copy  of  all  the  checks  so  drawn 
and  the  date  thereof. 

43.  [Claims  against  proceeds  in  registry.]  Any  person 
having  an  interest  in  any  proceeds  in  the  registry  of  the 
court  shall  have  a  right,  by  petition  and  summary  proceed- 
ing, to  intervene  pro  interesse  suo  for  delivery  thereof  to 
him;  and  upon  due  notice  to  the  adverse  parties,  if  any, 
the  court  shall  and  may  proceed  summarily  to  hear  and  de- 
cide thereon,  and  to  decree  therein  according  to  law  and 
justice.  And  if  such  petition  or  claim  shall  be  deserted,  or, 
upon  a  hearing,  be  dismissed,  the  court  may,  in  its  discre- 
tion, award  costs  against  the  petitioner  in  favor  of  the  ad- 
verse party. 

44.  [Reference  to  commissioners.]  In  cases  where  the 
court  shall  deem  it  expedient  or  necessary  for  the  purposes 
of  justice,  the  court  may  refer  any  matters  arising  in  the 
progress  of  the  suit  to  one  or  more  commissioners,  to  be 
appointed  by  the  court,  to  hear  the  parties  and  make  report 
therein.  And  such  commissioner  or  commissioners  shall 
have  and  possess  all  the  powers  in  the  premises  which  arc 
usually  given  to  or  exercised  by  masters  in  chancery  in  ref- 
erence to  them,  including  the  power  to  administer  oaths 
to  and  to  examine  the  parties  and  witnesses  touching  the 
premises. 

45.  [Appeals.]  All  appeals  from  the  district  to  the  Cir- 
cuit Court  must  be  made  while  the  court  is  sitting,  or  with- 
in such  other  period  as  shall  be  designated  by  the  District 
Court  by  its  general  rules,  or  by  an  order  specially  made 
in  the  particular  suit ;  or  in  case  no  such  rule  or  order  be 
made,  then  within  thirty  days  from  the  rendering  of  the 
decree. 


524  ADMIRALTY   RULES  (Appdx. 

46.  [Right  of  trial  courts  to  make  rules  of  practice.]     In 

all  cases  not  provided  for  by  the  foregoing  rules,  the  Dis- 
trict and  Circuit  Courts  are  to  regulate  the  practice  of  the 
said  courts  respectively,  in  such  manner  as  they  shall  deem 
most  expedient  for  the  due  administration  of  justice  in  suits 
in  admiralty. 

47.  [Bail — Imprisonment  for  debt.]  In  all  suits  in  per- 
sonam, where  a  simple  warrant  of  arrest  issues  and  is  ex- 
ecuted, bail  shall  be  taken  by  the  marshal  and  the  court  in 
those  cases  only  in  which  it  is  required  by  the  laws  of  the 
state  where  an  arrest  is  made  upon  similar  or  analogous 
process  issuing  from  the  state  court. 

And  imprisonment  for  debt,  on  process  issuing  out  of  the 
admiralty  court,  is  abolished,  in  all  cases  where,  by  the  laws 
of  the  state  in  which  the  court  is  held,  imprisonment  for 
debt  has  been,  or  shall  be  hereafter  abolished,  upon  similar 
or  analogous  process  issuing  from  a  state  court. 

48.  [Answer  in  small  claims.]  The  twenty-seventh  rule 
shall  not  apply  to  cases  where  the  sum  or  value  in  dispute 
does  not  exceed  fifty  dollars,  exclusive  of  costs,  unless  the 
District  Court  shall  be  of  opinion  that  the  proceedings  pre- 
scribed by  that  rule  are  necessary  for  the  purposes  of  jus- 
tice in  the  case  before  the  court. 

All  rules  and  parts  of  rules  heretofore  adopted,  inconsist- 
ent with  this  order,  are  hereby  repealed  and  annulled. 

49.  [Further  proof  on  appeal.]  Further  proof,  taken  in  a 
Circuit  Court  upon  an  admiralty  appeal,  shall  be  by  deposi- 
tion, taken  before  some  commissioner  appointed  by  a  Cir- 
cuit Court,  pursuant  to  the  acts  of  Congress  in  that  behalf, 
or  before  some  officer  authorized  to  take  depositions  by  the 
thirtieth  section  of  the  act  of  Congress  of  the  24th  of  Sep- 
tember, 1789,  upon  an  oral  examination  and  cross-exami- 
nation, unless  the  court  in  which  such  appeal  shall  be  pend- 
ing, or  one  of  the  judges  thereof,  shall,  upon  motion,  allow 
a  commission  to  issue  to  take  such  depositions  upon  writ- 
ten   interrogatories    and    cross-interrogatories.      When    such 


Appdx.)  ADMIRALTY   RULES  525 

deposition  shall  be  taken  by  oral  examination,  a  notifica- 
tion from  the  magistrate  before  whom  it  is  to  be  taken,  or 
from  the  clerk  of  the  court  in  which  such  appeal  shall  be 
pending-,  to  the  adverse  party,  to  be  present  at  the  taking  of 
the  same,  and  to  put  interrogatories,  if  he  think  fit,  shall 
be  served  on  the  adverse  party  or  his  attorney,  allowing 
time  for  their  attendance  after  being  notified  not  less  than 
twenty-four  hours,  and,  in  addition  thereto,  one  day,  Sun- 
days exclusive,  for  every  twenty  miles'  travel:  Provided, 
that  the  court  in  which  such  appeal  may  be  pending,  or  ei- 
ther of  the  judges  thereof,  may,  upon  motion,  increase  or 
diminish  the  length  of  notice  above  required. 

50.  [Evidence  on  appeal.]  When  oral  evidence  shall  be 
taken  down  by  the  clerk  of  the  District  Court,  pursuant  to 
the  above-mentioned  section  of  the  act  of  Congress,  and 
shall  be  transmitted  to  the  circuit  court,  the  same  may  be 
used  in  evidence  on  the  appeal,  saving  to  each  party  the 
right  to  take  the  depositions  of  the  same  witnesses,  or  ei- 
ther of  them,  if  he  should  so  elect. 

51.  [Issue  on  new  facts  in  answer.]  When  the  defend- 
ant, in  his  answer,  alleges  new  facts,  these  shall  be  con- 
sidered as  denied  by  the  libellant,  and  no  replication,  gen- 
eral or  special,  shall  be  filed,  unless  allowed  or  directed  by 
the  court  on  proper  cause  shown.  But  within  such  time 
after  the  answer  is  filed  as  shall  be  fixed  by  the  district 
court,  either  by  general  rule  or  by  special  order,  the  libel- 
lant may  amend  his  libel  so  as  to  confess  and  avoid,  or  ex- 
plain or  add  to,  the  new  matters  set  forth  in  the  answer; 
and  within  such  time  as  may  be  fixed,  in  like  manner,  the 
defendant  shall  answer  such  amendments. 

52.  [Record  on  appeal.]  The  clerks  of  the  District 
Courts  shall  make  up  the  records  to  be  transmitted  to  the 
Circuit  Courts  on  appeals,  so  that  the  same  shall  contain 

'the  following: 

1.  The  style  of  the  court. 


526  ADMIRALTY    RULES  (Appdx. 

2.  The  names  of  the  parties,  setting  forth  the  original 
parties,  and  those  who  have  become  parties  before  the  ap- 
peal, if  any  change  has  taken  place. 

3.  If  bail  was  taken,  or  property  was  attached  or  arrested, 
the  process  of  the  arrest  or  attachment  and  the  service 
thereof;  all  bail  and  stipulations;  and,  if  any  sale  has  been 
made,  the  orders,  warrants,  and  reports  relating  thereto. 

4.  The  libel,  with  exhibits  annexed  thereto. 

5.  The  pleadings  of  the  defendant,  with  the  exhibits  an- 
nexed thereto. 

6.  The  testimony  on  the  part  of  the  libellant,  and  any  ex- 
hibits not  annexed  to  the  libel. 

7.  The  testimony  on  the  part  of  the  defendant,  and  any 
exhibits  not  annexed  to  his  pleadings. 

8.  Any  order  of  the  court  to  which  exception  was  made. 

9.  Any  report  of  an  assessor  or  assessors,  if  excepted  to, 
with  the  orders  of  the  court  respecting  the  same,  and  the 
exceptions  to  the  report.  If  the  report  was  not  excepted 
to,  only  the  fact  that  a  reference  was  made,  and  so  much  of 
the  report  as  shows  what  results  were  arrived  at  by  the  as- 
sessor, are  to  be  stated. 

10.  The  final  decree. 

11.  The  prayer  for  an  appeal,  and  the  action  of  the  dis- 
trict court  thereon ;  and  no  reasons  of  appeal  shall  be  filed 
or  inserted  in  the  transcript. 

The  following  shall  be  omitted : 

1.  The  continuances. 

2.  All  motions,  rules,  and  orders  not  excepted  to  which 
are  merely  preparatory  for  trial. 

3.  The  commissions  to  take  depositions,  notices  therefor, 
their  captions,  and  certificates  of  their  being  sworn  to,  un- 
less some  exception  to  a  deposition  in  the  district  court  was 
founded  on  some  one  or  more  of  these;  in  which  case,  so 
much  of  either  of  them  as  may  be  involved  in  the  exception 
shall  be  set  out.  In  all  other  cases  it  shall  be  sufficient  to 
give  the  name  of  the  witness  and  to  copy  the  interrogate- 


Appdx.)  ADMIRALTY   RULES  527 

ries  and  answers,  and  to  state  the  name  of  the  commissioner, 
and  the  place  where  and  the  date  when  the  deposition  was 
sworn  to;  and,  in  copying  all  depositions  taken  on  inter- 
rogatories, the  answer  shall  be  inserted  immediately  follow- 
ing the  question. 

2.  The  clerk  of  the  District  Court  shall  page  the  copy  of 
the  record  thus  made  up,  and  shall  make  an  index  thereto, 
and  he  shall  certify  the  entire  document,  at  the  end  thereof, 
under  the  seal  of  the  court,  to  be  a  transcript  of  the  record 
of  the  District  Court  in  the  cause  named  at  the  beginning  of 
the  copy  made  up  pursuant  to  this  rule ;  and  no  other  cer- 
tificate of  the  record  shall  be  needful  or  inserted. 

3.  Hereafter,  in  making  up  the  record  to  be  transmitted  to 
the  circuit  clerk  on  appeal,  the  clerk  of  the  District  Court 
shall  omit  therefrom  any  of  the  pleading,  testimony,  or 
exhibits  which  the  parties  by  their  proctors  shall  by  writ- 
ten stipulation  agree  may  be  omitted ;  and  such  stipulation 
shall  be  certified  up  with  the  record. 

53.  [Security  on  cross-libel.]  Whenever  a  cross-libel  is 
filed  upon  any  counter-claim,  arising  out  of  the  same  cause 
of  action  for  which  the  original  libel  was  filed,  the  respond- 
ents in  the  cross-libel  shall  give  security  in  the  usual  amount 
and  form,  to  respond  in  damages,  as  claimed  in  said  cross- 
libel,  unless  the  court,  on  cause  shown,  shall  otherwise  di- 
rect; and  all  proceedings  upon  the  original  libel  shall  be 
stayed  until  such  security  shall  be  given. 

54.  [Limitation  of  liability — How  claimed.]  When  any 
ship  or  vessel  shall  be  libeled,  or  the  owner  or  owners  there- 
of shall  be  sued,  for  any  embezzlement,  loss,  or  destruction 
by  the  master,  officers,  mariners,  passengers,  or  any  other 
person  or  persons,  of  any  property,  goods,  or  merchandise 
shipped  or  put  on  board  of  such  ship  or  vessel,  or  for  any 
loss,  damage,  or  injury  by  collision,  or  for  any  act,  matter, 
or  thing,  loss,  damage,  or  forfeiture  done,  occasioned,  or  in- 
curred, without  the  privity  or  knowledge  of  such  owner  or 
owners,  and  he  or  thev  shall  desire  to  claim  the  benefit  of 


528  ADMIRALTY   RULES  (Appdx. 

limitation  of  liability  provided  for  in  the  third  and  fourth 
sections  of  the  act  of  March  3,  1851,  entitled  "An  act  to 
limit  the  liability  of  shipowners  and  for  other  purposes," 
now  embodied  in  sections  4283  to  4285  of  the  Revised  Stat- 
utes, the  said  owner  or  owners  shall  and  may  file  a  libel  or 
petition  in  the  proper  District  Court  of  the  United  States,  as 
hereinafter  specified,  setting  forth  the  facts  and  circum- 
stances on  which  such  limitation  of  liability  is  claimed,  and 
praying-  proper  relief  in  that  behalf;  and  thereupon  said 
court,  having  caused  due  appraisement  to  be  had  of  the 
amount  or  value  of  the  interest  of  said  owner  or  owners, 
respectively,  in  such  ship  or  vessel,  and  her  freight,  for  the 
voyage,  shall  make  an  order  for  the  payment  of  the  same  in- 
to court,  or  for  the  giving  of  a  stipulation,  with  sureties,  for 
payment  thereof  into  court  whenever  the  same  shall  be 
ordered ;  or,  if  the  said  owner  or  owners  shall  so  elect,  the 
said  court  shall,  without  such  appraisement,  make  an  order 
for  the  transfer  by  him  or  them  of  his  or  their  interest  in 
such  vessel  and  freight,  to  a  trustee  to  be  appointed  by  the 
court  under  the  fourth  section  of  said  act ;  and,  upon  com- 
pliance with  such  order,  the  said  court  shall  issue  a  moni- 
tion against  all  persons  claiming  damages  for  any  such 
embezzlement,  loss,  destruction,  damage,  or  injury,  citing 
them  to  appear  before  the  said  court  and  make  due  proof 
of  their  respective  claims  at  or  before  a  certain  time  to  be 
named  in  said  writ,  not  less  than  three  months  from  the  is- 
suing of  the  same ;  and  public  notice  of  such  monition  shall 
be  given  as  in  other  cases,  and  such  further  notice  served 
through  the  post-office,  or  otherwise,  as  the  court,  in  its 
discretion  may  direct ;  and  the  said  court  shall  also,  on  the 
application  of  the  said  owner  or  owners,  make  an  order  to 
restrain  the  further  prosecution  of  all  and  any  suit  or  suits 
against  said  owner  or  owners  in  respect  of  any  such  claim 
or  claims. 

55.   [Proof    of    claims    in    limited    liability    procedure.] 
Proof  of  all  claims  which  shall  be  presented  in  pursuance 


Appdx.)  ADMIRALTY  RULES  529 

of  said  monition  shall  be  made  before  a  commissioner,  to  be 
designated  by  the  court,  subject  to  the  right  of  any  person 
interested  to  question  or  controvert  the  same  ;  and  upon  the 
completion  of  said  proofs,  the  commissioners  shall  make  re- 
port of  the  claims  so  proven,  and  upon  confirmation  of  said 
report,  after  hearing  any  exceptions  thereto,  the  moneys 
paid  or  secured  to  be  paid  into  court  as  aforesaid,  or  the  pro- 
ceeds of  said  ship  or  vessel  and  freight  (after  payment  of 
costs  and  expense),  shall  be  divided  pro  rata  amongst  the 
several  claimants  in  proportion  to  the  amount  of  their  re- 
spective claims,  duly  proved  and  confirmed  as  aforesaid, 
saving,  however,  to  all  parties  any  priority  to  which  they 
may  be  legally  entitled. 

56.  [Defense  to  claims  in  limited  liability  procedure.] 
In-  the  proceedings  aforesaid,  the  said  owner  or  owners 
shall  be  at  liberty  to  contest  his  or  their  liability,  or  the  lia- 
bility of  said  ship  or  vessel  for  said  embezzlement,  loss,  de- 
struction, damage,  or  injury  (independently  of  the  limitation 
of  liability  claimed  under  said  act),  provided  that,  in  his  or 
their  libel  or  petition,  he  or  they  shall  state  the  facts  and  cir- 
cumstances by  reason  of  which  exemption  from  liability  is 
claimed;  and  any  person  or  persons  claiming  damages  as 
aforesaid,  and  who  shall  have  presented  his  or  their  claim  to 
the  commissioner  under  oath,  shall  and  may  answer  such 
libel  or  petition,  and  contest  the  right  of  the  owner  or  own- 
ers of  said  ship  or  vessel,  either  to  an  exemption  from  lia- 
bility, or  to  a  limitation  of  liability  under  the  said  act  of 
Congress,  or  both. 

57.  [Courts  having  cognizance  of  limited  liability  proce- 
dure.] The  said  libel  or  petition  shall  be  filed  and  the  said 
proceedings  had  in  any  District  Court  of  the  United  States 
in  which  said  ship  or  vessel  may  be  libeled  to  answer  for 
any  such  embezzlement,  loss,  destruction,  damage,  or  in- 
jury ;  or,  if  the  said  ship  or  vessel  be  not  libeled,  then  in  the 
district  court  for  any  district  in  which  the  said  owner  or 
owners  may  be  sued  in  that  behalf.    When  the  said  ship  or 

Hugiies,Adm.(2d  Ed.)— 34 


530  ADMIRALTY   RULES  (Appdx. 

vessel  has  not  been  libeled  to  answer  the  matters  afore- 
said, and  suit  has  not  been  commenced  against  the  said 
owner  or  owners,  or  has  been  commenced  in  a  district 
other  than  that  in  which  the  said  ship  or  vessel  may  be,  the 
said  proceedings  may  be  had  in  the  district  court  of  the  dis- 
trict in  which  the  said  ship  or  vessel  may  be,  and  where  it 
may  be  subject  to  the  control  of  such  court  for  the  pur- 
poses of  the  case  as  hereinbefore  provided.  If  the  ship  have 
already  been  libeled  and  sold,  the  proceeds  shall  represent 
the  same  for  the  purposes  of  these  rules. 

58.  [Appeals  in.]  All  the  preceding  rules  and  regula- 
tions for  proceeding  in  cases  where  the  owner  or  owners 
of  a  ship  or  vessel  shall  desire  to  claim  the  benefit  of  lim- 
itation of  liability  provided  for  in  the  act  of  Congress  in 
that  behalf,  shall  apply  to  the  Circuit  Courts  of  the  United 
States  where  such  cases  are  or  shall  be  pending  in  said 
courts  upon  appeal  from  the  District  Courts. 

59.  [Right  to  bring  in  party  jointly  liable  in  collision 
case.]  In  a  suit  for  damage  by  collision,  if  the  claimant  of 
anv  vessel  proceeded  against,  or  any  respondent  proceeded 
against  in  personam,  shall,  by  petition,  on  oath,  presented 
before  or  at  the  time  of  answering  the  libel,  or  within  such 
further  time  as  the  court  may  allow,  and  containing  suitable 
allegations  showing  fault  or  negligence  in  any  other  vessel 
contributing  to  the  same  collision,  and  the  particulars  there- 
of, and  that  such  other  vessel  or  any  other  party  ought  to  be 
proceeded  against  in  the  same  suit  for  such  damage,  pray 
that  process  be  issued  against  such  vessel  or  party  to  that 
end,  such  process  may  be  issued,  and,  if  duly  served,  such 
suit  shall  proceed  as  if  such  vessel  or  party  had  been  origi- 
nally proceeded  against ;  the  other  parties  in  the  suit  shall 
answer  the  petition;  the  claimant  of  such  vessel  or  such 
new  party  shall  answer  the  libel ;  and  such  further  proceed- 
ings shall  be  had  and  decree  rendered  by  the  court  in  the 
suit  as  to  law  and  justice  shall  appertain.  But  every  such 
petitioner  shall,  upon  filing  his  petition,  give  a  stipulation, 


Appdx.)  ADMIRALTY   RULES  531 

with  sufficient  sureties,  to  pay  to  the  libellant  and  to  any 
claimant  or  new  party  brought  in  by  virtue  of  such  process, 
all  such  costs,  damages,  and  expenses  as  shall  be  awarded 
against  the  petitioner  by  the  court  upon  the  final  decree, 
whether  rendered  in  the  original  or  appellate  court;  and 
any  such  claimant  or  new  party  shall  give  the  same  bonds 
or  stipulations  which  are  required  in  like  cases  from  parties 
brought  in  under  process  issued  on  the  prayer  of  a  libellant. 


TABLE  OF  CASES  CITED 


[the  figures  refer  to  pages] 


A.  A.  Raven,  329. 

Abbie  C.  Stubbs,  366,  371. 

Acilia,    290. 

Acme,  311. 

Ada  A.  Kennedy,  272. 

Adams  v.  Island  City,  135. 

Adelaide  T.  Carleton,  134. 

Admiral    Gecille,    408. 

Adriatic,   282. 

Aeolus,    135. 

Agnella,  249. 

Aina,   383,   397. 

Aitcheson      v„     Endlesa     Chain 

Dredge,  106. 
Ajum  v.  Insurance  Co.,  62. 

Akaba,   134,   146. 

Akerblom  v.   Price,   139,   150. 

Alabama,    319. 

Alamo,  134. 

Alaska,    152,    229,    244. 

Alaska   Banking  &   Safe  Deposit 
Co.  v.  Maritime  Ins.   Co.,  74. 

Alaska    Packers'    Ass'n   v.    Dom- 
enico,  24. 


Alice,  135. 

Aline,   3S5,   389,   393,    394,  39o. 
Allanwilde     Transport     Corpora- 
tion  v.    Vacuum   Oil   Co.,   159. 
Allan  &   Flora,  293. 
Allen  v.  Canada,  135. 
Allen  v.  Mackay,  371. 
Alvira,  116. 
Alzena,  39. 
Amagansett,  266. 
Amelie,  334. 

America,  12S,  129,  318,  397. 
American,  279. 

American    S.    B.    Co.    v.    Chase, 
230. 

American   Sugar   Refining   Co.   v. 
Maddock,   163. 

American   Sugar  Refining  Co.  v. 
Rickinson,  192. 

Americana,  364. 

Amerique,    147. 

Amos  D.   Carver,  357. 

Amstel,  120. 

Amsterdam,  356. 

Anchoria,    404. 

Andalusia,   149. 


enico,   Z4.  Anuaiusw,    j.**.  . 

Alaska  S    S.  Co.  v.  Inland  Nav.  i  Andrews  v.  Essex  Fire  &  Marine 
£!     qo«  I      Tns    P,o..  22.  51.  68,  69. 


Co.,  326. 
Albani,   28. 
Albano,  278. 
Albany,  419. 
Albergen,  28. 
Albert    Dum-ois,     227,     239,    249, 

°91,  295,  314,  330.  356. 
Albion,  The,  137,  200. 
Alcalde,  408. 
Alcazar,  153. 
Alexandria,   40. 
Algiers,   257,   258. 
Algol,   295. 
Alharabra,   175 


Ins.  Co.,  22,  51,  68,  69. 
Angele,  143. 
Anglo-Argentine     Live     Stock     & 

Produce   Agency   v.   Temperley 

Shipping   Co.,   45. 
Anglo-Patagonian,  236. 
Anna.  134. 
Anne,   103,   131. 
Annie   Faxon,   352,    362. 
Annie  Lord,  151. 
Ann   J.   Trainer,  303. 
Antilla,  134. 
Apollo,    339. 
Appam,   156,   158. 


Hughes, Adm.  (2d  ET>.)  ( 533 ) 


534 


CASES   CITED 
[The  figures  refer  to  pages] 


Areturus,   391. 

Aid  Coasters  v.  King,  The,  Si'. 

A.  K.  Dunlap,  107. 

Argentino,    32X. 

Argus,    322,    324. 

Ariadne,  419. 

Arkansas,  196. 

Armstrong  County  v.  Clarion 
County,  323. 

Arrow,    288. 

Ashbourne,    130,   148. 

Ash  ton,   284. 

Astor  Trust  Co.  v.  E.  V.  White 
&   Co.,    106. 

Astrakhan,   329. 

Atalanta,   20. 

Atchison,  T.  &  S.  F.  R.  Co.  v.  Har- 
old, 163. 

Athenian,  380. 

Atkins  v.  Fibre  Disintegrating 
Co.,  400. 

Atlantic,    206. 

Atlantic  City,   130. 

Atlantic  Mut.  Ins.  Co.  v.  Penin- 
sular &  O.  S.  S.  Co.,  87, 

Atlantic  Transport  Co.  v.  Im- 
brovek.  217,  219. 

Atlantic  Transport  Co.  of  West 
Virginia  v.  Imbrovek.  120,  197, 
217. 

Atlas,  317,  319. 

Atlee  v.  Northwestern  Union 
Packet  Co.,  34,  203. 

Auvhenarden,  211.'. 

August  Belmont.  410. 

An -ust    Korff,    141,    265. 

Aurania,   278.    2S6. 

Aurelia,  266. 

Austro-American  S.  S.  Co.  v. 
Thomas,  210. 


Badger  v.  President,  etc.,  of  Bank 

of   Cumberland,   3:::;. 
Bags  of  Binseed,  157. 
Bain,    122. 
Bain    v.    Sandusky    Transp.,  Co. 

201. 
Baker  v.  Bolton,  223. 
Bakei  Standard,  14S. 
Ball  v.  Berwind,  203,  304. 
Balmoral    S.    S.    Co.    v.    Marten. 

91. 


Baltimore,  326,  330. 

Baltimore  Steam  Packet  Co.  v. 
Coastwise  Transp.  Co.,  260. 

Banner,  312. 

Barber    v.    Lockwood,    405. 

Barker  v.  Janson,  84,  88. 

Barnard  v.  Adams,  43. 

Barnett  &  Record  Co.  v.  Wine- 
man.   153. 

Barnstable,  415. 

Baron  Napier,  207. 

Batehelder  v.  Insurance  Co.  of 
North  America,  62. 

Bayonne,  312. 

Bay  State,  249. 

B.  C.  Terry,  149. 

Beaconsfield,  282,  404. 

Bearse  v.  Ropes,  160. 

Beaver,  264. 

Bedeburn,  139. 

Bee,    200. 

Beecbdene,  213. 

Belgenland,  28,  250,  297. 

Bellanoch,  254. 

Belle  of  the  Coast,  109. 

Bello  Corrunes,  148. 

Belmont.  410. 

Belvidere,  28. 

Benares,  2S5,  293. 

Bendo,  298,  299. 

Benefactor.  .'!7.';. 

Benjamin  Noble,  342. 

Benner  Line  v.  Pendleton,  187. 

Bennetts  v.  Brown,  176. 

Berkshire.  290. 

Bernard  v.  Hyne,  397. 

Bernicia,  257,  297. 

Bernina.  The.  215,  227. 

Beryl,  207. 

Besse  v.  Hecht,  343. 

Biays  v.  Chesapeake  Ins.  Co.,  85. 

Big  Jim,  16. 

Bjolstad  v.  Pacific  Coast  S.  S. 
Co.,  234,  242. 

Black  v.  Ashley,  351. 

Blackheath,  203. 

Blackwall,  135,  404. 

Blaireau,    133. 

Blake  v.  Baltimore  &  C.  S.  S.  Co. 
of  Baltimore   City,   134. 

Blue  Bell,  291. 

Blue  Jacket.   297,   299,  332. 

Boak  v.  Baden,  The,  199. 

Bob  Connell,  123. 


CASES  CITED 
[The  figures  refer  to  pages] 


535 


Bogart  v.  John  Jay,  The,  20. 

Bold  Buccleugh,  396. 

Bonanno  v.  Tweedie  Trading  Co., 
174. 

Bonnah  v.  Lakeside  S.  S.  Co.,  281. 

Borden  town,  366. 

Boston,  148. 

Boston  Marine  Ins.  Co.  v.  Metro- 
politan Redwood  Lumber  Co., 
363,   375. 

Botany  Worsted  Mills  v.  Knott, 
192. 

Bougainville,   252. 

Bouker  No.  2,  205,  276. 

Boulton  v.  Moore,  413. 

Bourgogne,  155. 

Boutin  v.  Rudd,  331. 

Bowker  v.  U.  S.,  412. 

Boyer,  Ex  parte,  13,  196. 

Boyne,  135. 

Brackett  v.  Hercules,  415. 

Bradie  v.  Maryland  Ins.  Co.,  87. 

Bradley  v.  Corn  Exchange,  In- 
land Nav.  &  Fire  Ins.  Co.,  398. 

Bradley  v.  Newsum,  159. 

Bradshaw  v.  Sylph,  336. 

Braisted  v.  Denton,  22. 

Bramble  v.  Culmer,  167. 

Branchelow  S.  S.  Co.  v.  Lamport, 
175. 

Brand,  32S. 

Branston,  140. 

Breakwater,  277,  282,  294. 

Briggs  &  Cobb  v.  Barnett,  336, 
343. 

Brigham  v.  Luckenbach,  257,  311. 

Bris,  159. 

Britain  S.  S.  Co.  v.  King,  The, 
82. 

Britannia,  282,  283. 

British  India  Steam  Nav.  Co.  v. 
Green,  S2. 

British  King,  192. 

British  &  Foreign  S.  S.  Co.  v. 
King,  The,  81. 

Brittan  v.  Barnaby,  155,  157,  163. 

Broadmayne.   407. 

Brodie  v.  Howard,  338. 

Brooks  v.  Hilton-Dodge  Lumber 
Co.,  123. 

Brown  v.  Johnson,  175. 

Bruxelleville.  331. 

Bryan  v.  U.  S.,  134. 


Buck  v.  Chesapeake  Ins.  Co.,  53, 
56. 

Buena  Ventura,  24. 

Bulgaria,   329. 

Bulkley  v.  Naumkeag  Steam  Cot- 
ton Co.,  157,  163. 

Bullard  v.  Roger  Williams  Ins. 
Co.,  61,  62. 

Bunker  Hill,  206. 

Burke,  314. 

Burke  v.  Gulf,  C.  &  S.  F.  R.  Co., 
347. 

Burke  v.  M.  P.  Rich,  404. 

Burley  v.  Compagnie  de  Naviga- 
tion Francaise,  36. 

Burnham  v.  China  Mut.  Ins.  Co., 
245. 

Burrows  v.  Gower,  251,  254. 

Butler  v.  Boston  &  S.  S.  S.  Co., 
238.  239,  241,  356,  375. 

Butterworth  v.  Washington,  135. 

Byrne  v.  Johnson,  153. 

Bywell  Castle,  332. 


Cairo,  135. 

Caland,  254. 

Calbreath  v.  Gracy,  68. 

Calderon   v.    Steamsbip   Co..    ISO. 

Caldy,  303. 

Caledonia,  49,  155,  172. 

Caledonian  R.  Co.  v.  Mulholland, 

214. 
California  Nav.  &  Imp.  Co.,  In  re, 

1S7. 
Calyx,    137. 
Camanche,  134.  115. 
Cambria   S.   S.   Co.  v.  Pittsburgh 

S.   S.  Co.,  2S7. 
Camellia,  141. 
Campbell  v.   H.   Hackfeld  &  Co., 

216,  217. 
Candee  v.  6S  Bales  of  Cotton,  140. 
Canton  Ins.  Office  v.  Woodside,  52, 

85. 
Cape  Fear  Towing  &  Transp.  Co. 

v.  Pearsall,  150,  408. 
Capitol   Transp.   Co.   v.   Cambria 

Steel  Co.,  352. 
Captain  Weber,  419. 
Carbon  Slate  Co.  v.  Ennis,  170. 
Cardiff  Hall,  318. 
Cargo  ex  Argos,  157. 


536 


CASES   CITED 
[The  figures  refer  to  pages] 


Cargo  ex  Sarpedon,  146. 

Cargo  of  Fertilizer,  156. 

Cargo  of  Ulysses,   140. 

Carib  Prince,  193. 

Caro,  299. 

Carolina,  216. 

Carolina,   C.  &  O.  R.  R.  v.  She 
waiter,  235,  236. 

Carrie,   140. 

Carroll,  332. 

Carter  v.  Brown,  221. 

Cassius,  157. 

Catalonia,  25. 

Catherine,    314. 

Catskill,  375. 

Cayo  Bonito,  140. 

Cayuga,  277,  278,  329. 

Cayzer  v.  Carron  Co.,  312. 

Celtic  Chief,  148. 

Celtic  Monarch,  265. 

Centurion,  3121 

Certain  Logs  of  Mahogany,   156, 

Ceto,  285. 

C.  F.  Bielman,  138. 

Chadbourne  v.  Duncan,  333. 

Chamberlain  v.  Chandler,  215. 

Chandler  v.  Blogg,  246. 

Chappell  v.  Bradshaw,  352. 

Charles  B.  Sandford,  130. 

Charles  Carter,  97. 

Charles  E.  Matthews,  303. 

Charles  F.  Perry,  22. 

Charles  Hubbard,  332. 

Charlotte,  137. 

Chase  v.  McLean,  342. 

Chatham,   281. 

Chattahoochee,  187,  262,  314. 

Cheerful,   148. 

Chelentis  v.  Luckenbach  S.  S.  Co., 

112.   207,   232. 
Chicago,  276. 
Chicklade,  122. 
China,  33,  37. 

China  Mut.  Ins.  Co.  v.  Ward,  53. 
Chioggia,  377. 
Church  Cooperage  Co.  v.  Pinkney, 

173. 
Chusan,  106,  118. 
Cimbria,  107. 
Circassian,   400. 
Citta  di  Palermo,  100. 
City  of  Birmingham,  303. 
City  of  Brockton.  287. 


City  of  Camden,  52. 

City  of  Chester,  147. 

City  of  Clarksville,  351. 

City  of  Columbia,  141. 

City  of  Columbus,  356. 

City  of  Dundee,  39,  303. 

City  of  Hartford,  419. 

City  of  Lincoln,  331. 

City  of  Macon,  274. 

City  of  Manchester,  318. 

City  of  Milford.  102,  104. 

City   of   Norwich,    364,   306,    370, 
371,   372. 

City  of  Panama,  210. 

City  of  Paris,  150. 

City  of  Philadelphia  v.  Gavagnin, 
299. 

City  of  Puebla,  141,  151. 

City  of  Reading,  39,  303. 

City  of  Tawas,  377,  391,  397. 

C.  J.  Saxe,  389. 

Clandeboye,  148. 

Clara,  300. 

Clara  Davidson,  293. 

Clarita,  103,  125,  131,  140,  300. 

Clark  v.  Protection  Ins.  Co.,  68. 

Clarke  v.  Coal  Co.,  226. 

Clarke  v.  Dodge  Healy,  410. 

Claus  v.  Steamship  Co.,  212. 

Cleveland,    408. 

Cleveland,  T.  &  V.  R.  Co.  v.  Cleve- 
land   S.    S.   Co.,    198. 

Cleveland  &  B.  Transit  Co.  v.  In- 
surance Co.  of  North  America, 
63. 
Clifford  v.  Hunter,  60. 
Cline  v.  Western  Assur.  Co.,  246. 
Clutha  Boat.  291. 
Clydach,  289,  291. 
Clyde    Commercial    S.    S.    Co.    v. 

West  India  S.  S.  Co.,  167. 
Clyde  Nav.   Co.   v.   Barclay,   297. 
Coast   Wrecking    Co.    v.    Phoenix 

Ins.  Co.,  51. 
Coburn    v.    Factors'    &    Traders' 

Ins.  Co.,  106. 
Cochran.    198. 
Coe  F.  Young,  2S3. 
Collin  v.  Jenkins,  406. 
Conn  v.  Davidson,  172. 
Coleman  v.  Aiken,  130. 
Colima,  189,  356,  360. 
Colon,    145,    213. 


CASES   CITED 
[The  figures  refer  to  pages] 


537 


Colorado,   263,    264. 

Columbia,  265,  29S,  367,  409. 

Columbia   Ins.  Co.   v.  Ashby,  42. 

Columbia  Ins.  Co.  v.  Catlett,  (j.j. 

Columbian,   2S3. 

Columbus,    311. 

Colusa,  207. 

Comet,  138. 

Commander  in  Cbief,  404. 

Compagnie  de  Navigation  Fran- 
ca ise  v.   Bur  ley,  36. 

Compagnie  Maritime  Francaise 
v.  Meyer,  187. 

Compania  de  Navigation  La 
Flecba  v.  Brauer,  78,  166. 

Concordia,    295. 

Coney  Island,  129. 

Connemara,  135,  140,  141,  149. 

Conqueror,  329. 

Consolidated  Coal  Co.  v.  Knick- 
erbocker Steam  Towage  Co., 
130. 

Consolidated  Coastwise  Co.  v. 
Conley,    212. 

Constable,   Case   of,   197,   220. 

Constable  v.  National  S.  S.  Co., 
160. 

Contino  v.  Wilmington  Steam- 
boat Co.,  215. 

Conveyor,  386. 

Convoy,  108. 

Cooley  v.  Board  of  Wardens  of 
Port  of  Philadelphia,  32,  33, 
36. 

Cooper  v.   Reynolds,  401. 

Cope  v.  Vallette  Dry-Dock  Co. 
of  New  Orleans,  14,  136. 

Copelin  v.  Phoenix  Ins.  Co.,  93. 

Cora  P.  White,  106. 

Cornfoot  v.  Assurance  Corpora- 
tion, 74. 

Corrado  v.  Pedersen,  207. 

Corsair,  229,  236,  244,  246,  401, 
402. 

Corsar  v.   Spreckels,   192. 

Corsica  Transit  Co.  v.  W.  S. 
Moore  Grain  Co.,  112,  118. 

Cory  v.  Patton,  5S. 

Coxe  Bros.  &  Co.  v.  Cunard  S.  S. 
Co.,  310. 

Coyne   v.    Caples,   338,   339. 

Craig  v.  Continental  Ins.  Co., 
353,   354,  363. 

Craig  v.  U.  S.  Ins.  Co.,  68. 


Crawford  Bros.  No.  2,  16. 

C.  R.   Hoyt,   316. 

Crocker   v.   Jackson,   66. 

Cromwell,    125. 

Crossmau  v.  Burrill,  178. 

Crow  v.  Myers,  174,  176. 

Crown  of  Castile,  415. 

C.  R.  Sheffer,  161. 

C.   S.   Holmes,   205. 

Culliford  v.  Gomila,  170. 

Cunard  S.  S.  Co.  v.  Kelley,  193. 

Curran,    265. 

Currie    v.    Bombay    Native    Ins. 

Co.,  88. 
Cu  suing  v.  Laird,   403. 
Cushman  v.  Ryan,  409. 
C.   Vanderbilt,  22. 
C.  W.  Mills,  125,  129. 
Cygnet,    190. 


Dailey  v.  New  York,  415. 

Dallington,  37. 

Dan,   161. 

Dan  Brown,  394. 

Daniel  Ball,  The  ,  12. 

Daniel  Kaine,  336,  337. 

Daniel  Steinman,  145. 

Dantzler  Lumber  Co.  v.  Church- 
ill, 174. 

Darling  v.  Raebum,  176. 

Darlington  v.  Turner,  419. 

Dauntless,  290. 

David    Crockett,   262. 

Davidson  v.  Baldwin,  344. 

Davidson  v.  Hull,  242. 

Davis  153,  401. 

Davis  v.  Smokeless  Fuel  Co., 
413. 

Davison  v.  Von  Lingen,  169,  173. 

Daylesford,  221. 

Daylight,  415. 

De  Bay,  143. 

Dedekam  v.  Vose,  413. 

Degama,    12S. 

Delaware,  1S4,  247,  2S3. 

Delaware  Mut.  Safety  Ins.  Co.  v. 
Gossler,  84,  96. 

Delmar,  281. 

De  Lovio  v.  Boit,  19,  51. 

Deslions  v.  La  Compagnie  Gen- 
erale  Transatlantiquc,  347, 
363,  365,  371. 


538 


CASES   CITED 

[The  figures  refer  to  pages] 


Des  Moines,  327. 

Des    Moines    &    M.    R.    Co.,    Ex 

parte,  412. 
De  Vaux  v.  Salvador.  76. 
Devonshire,  128. 
De  Wolf  v.  Harris,  334. 
Dexter,    269. 
Dexter  v.  Arnold,  409. 
Diamond,  349. 
Diana,  275. 
Dias  v.  Revenge,  103. 
Dibble  v.  Morgan,  165. 
Director,  300. 
Disney  v.  Furness,  Withy  &  Co., 

16S,   174. 
Dobell    v.     Steamship    Rossmore 

Co.,   191. 
Dode,  398. 

Dole  v.  New  England  Mut.  Mar- 
ine Ins.  Co.,  82. 
Domenico     v.     Alaska     Packers' 

Ass'n,  24. 
Donnell  v.   Boston   Towboat  Co., 

279. 
Doolittle  v.  Knobeloch,  21. 
Dora,  380,  384,  3S5. 
Dora  Allison,  34. 
Dordogne.  264. 
Doris,  129. 

Dorrington   v.   Detroit,    14S.    199. 
Doughertv  v.  Thompson-Lockhart 

Co.,  205. 
Douse  v.  Sargent,  354. 
Drill  Boat  No.  4,  304. 
Dudgeon  v.  Pembroke,  63. 
Due  d'Aumale,  140. 
Duff  v.  McKenzie,  85. 
Dunbritton,  189. 
Dupleix,  402. 

Dupont  de  Nemours  v.  Vance,  50. 
Dutton  v.  Express,  The.  128. 
Dwver  v.  National  S.  S.  Co.,  212. 


E 


Ends  v.  H.  D.  Bacon,  134,  409. 

Eagle  Point,  318. 

E.  A.  Packer,  277. 

Earl  v.  Lubbock,  213. 

Earnwood,  190. 

E.   A.   Shores.  Jr..  188. 

Eastern  Dredging  Co.,  In  re,  325. 


Eastern     S.     S.     Corporation     v. 

Great    Lakes    Dredge    &    Dock 

Co.,    364. 
Eastern    Transp.    Line    v.    Hope, 

129. 
Eastfield  S.  S.  Co.  v.  McKeon,  404. 
Eastland.  405. 
Easton,  Ex  parte,  11,  22. 
Eclipse,  340,  400,  403. 
Edam,  14.".. 
Edith,    392.    415. 
Edith  L.  Allen,  146. 
Edmund  Moran,  311,  312. 
Edward    Hines    Lumber    Co.     v. 

Chamberlain.    158. 
Edward  R.  West.  205. 
Edwards  v.  Elliott,  117,  232. 
Egbert  v.  St.  Paul  Fire  &  Marine 

Ins.  Co.,  76. 
Egypt,  143,  351. 
Elder  Dempster  Shipping  Co.  v. 

Pouppirt,  212. 
Electron,  116,  118. 
Elfrida,  8,  150. 
El  in.  389. 

Eliza  B.  Emory,  340. 
Eliza  Jane,  106. 
Elizabeth  Jones,  332. 
Elk,  298. 
Ella.  102.  106. 
Ellen  Holgate,  104,  109. 
Elleric,  211. 
Ellis  v.  U.  S.,  24. 
Ellora,  137. 
Elton,  213. 
E.  Luckenbach,  281. 
Elvers  v.  W.  R.  Grace  &  Co.,  17S. 
Emily  B.  Maxwell.  283. 
Emily  B.  Souder,  105,  107,  124. 
Emma   B.,  339. 
Emmv  Haase.  285. 
E.  M.  Peck,  311. 
Empire  State,  283. 
Energy,  131. 
England,  339. 
Enterprise,  130. 
Erastina,  131. 
Ereza,  147. 

Erie   Lighter.   860,  364.  367. 
Erie  R.  Co.  v.  Erie  &  W.  Transp. 

Co.,  325. 
Erinagh,  22. 
Finest    A.    Hamill,   327. 


CASES  CITED 
[The  figures  refer  to  pages] 


539 


Escanaba,  387,  391. 

Esparta,  274. 

Essequibo,  257. 

Ester,    28. 

Ethel,  402. 

Ethelstan,  374. 

Etona,  192. 

Eugene,   22. 

Eugene  F.  Moran  v.  New  York 
Cent.  &  H.  R.  R.  Co.,  125,  318, 
367. 

Eureka,  104. 

Europa,  283. 

Europe,  300,  303,  328. 

Evangel,  414. 

Evans  v.  New  York  &  P.  S.  S. 
Co.,  415. 

Evans  v.  Western  Timber  &  Log- 
ging Co.,  203. 

Evolution,  389. 

Excelsior,  258,  283. 


Fort  Wayne,  380,  393. 

Fosdick  v.  Schall,  109. 

Foster  v.   Merchants'   &   Miners' 

Transp.  Co.,  254. 
Francis,  104. 
Frank  G.  Fowler,  394. 
Frank  S.  Hall,  318. 
Frankland,  314,  323. 
Frazer  v.   Cuthbertson,  338,  343. 
Frazier  v.  Luckenbacb.  213. 
Fredericka  Schepp,  338. 
Free  State,  279. 
Fretz  v.  Bull,  404. 
Frey,  189. 
Frontier  S.  S.  Co.  v.  Central  Coal 

Co.,  160. 
Fullerton,  419. 
Furnessia,  212. 
Fyenoord,  249. 


Fabre  v.  Cunard  S.  S.  Co.,  326. 

Fairgrieve  v.  Marine  Ins.  Co.,  92 

Fairport,  143. 

Falcke  v.  Insurance  Co.,  133. 

Fancy,  278. 

Fannie,  280. 

Fannie  Brown,  137,  145. 

Fannie  Hayden,  298. 

Fargrove   Nav.   Co.  v.   Lavino  & 

Co.,  176. 
Farragut.   297. 
Fassett,  Ex  parte,  216. 
Favorita,  249. 
Felice  B.,  3S3. 
Fern  Holme,  53. 
F.  H.  Stanwood,  3S9. 
50,000  Feet  of  Timber,  In  re,  135. 
F.  I.  Merryman,  135. 
Finch,  197. 
Fireman's  Fund  Ins.  Co.  v.  Globe 

Nav.  Co.,  62,  84,  87. 
Fisher  v.  Sybil,  135. 
Fisk  v.  New  York,  329. 
Fitzgerald,  191. 
Flora  Rodgers,  147. 
Florence,  138. 
Flottbek,  135. 
Flower  v.  Bradley,  40. 
Forshaw  v.  Ghabut,  60. 
Fortuna,  22.  109. 


Gabrielson  v.  Waydell,  206. 
Gaffner  v.  Pigott,  287. 
G.  A.  Flagg,  407. 

Galatea,  275. 

Gallatin  v.  Pilot,  341. 

Gamma,  276. 

Garcia  y  Leon  v.  Galceran,  111. 

Garden  City,  318. 

Gardner     v.     Ninety-Nine     Gold 
Coins,  147. 

Garnett,  Ex  parte,  115,  117,  237. 

Garnett,  In  re,  12,  354. 

Gas  Float  Whitton  Case,  136. 

Gas  Float  Whitton  No.  2,  16,  17. 

Gate  City,  281,  282. 

Gazelle,  170,  175. 

Geisha,  109. 

Gemma,  402. 

General  Cass,  15. 

General  Jackson,  106. 

General   Mut.    Ins.   Co.   v.    Sher- 
wood, 76. 

General  Palmer,  149. 

General  Smith,  99,  110,  115. 

General  TJ.  S.  Grant,  283. 

Genesee  Chief,  The,  11,  237. 

George  Bell,  262,  327. 

Geo.  F.  Randolph,  265. 

Geo.  L.  Garlick,  365. 

George  T.  Kemp.  120. 

George  W.  Cbilds,  299. 

George  W.  Elder,  251. 


540 


CASES  CITED 
[The  figures  refer  to  pages] 


George  W.  Elzey,  148. 

George  W.   Roby,  270,  314,  327. 

Georgia,  109. 

Georgiana,  13S. 

Germanic,  1S9,  218. 

G.  H.   Starbuck,  103. 

Gibson,  151. 

Gibson  v.  Small,  62. 

Gilbert  Knapp,  120. 

Gilbraith  v.  Stewart  Transp. 
Co.,  138. 

Gilchrist  v.  Chicago  Ins.  Co.,  87, 
93. 

Gilchrist  Transp.  Co.  v.  Boston 
Ins.  Co.,  190. 

Gilchrist  Transp.  Co.  v.  110,000 
Bushels  of  No.  1  Northern 
Wheat,  151. 

Giles  Loring,  357,  365,  371. 

Giuseppe  v.  Manufacturers'  Ex- 
port Co.,  169. 

Gladys,  251. 

Glaholm  v.  Barker,  356,  375. 

Glannibanta,   296. 

Glendale,  244,  419. 

Glenfruin,  151. 

Glengariff,  290,  291. 

Glengyle,  145. 

Glen  Island,  394. 

Glenmavis,   164. 

Glide,  111,  231,  421. 

Globe  S.  S.  Co.  v.  Moss,  205. 

Gokey  v.  Fort,  353,  357,  365,  367. 

Golcar  S.  S.  Co.  v.  Tweedie 
Trading  Co.,  187. 

Goodrich  Transp.  Co.  v.  Gagnon, 
355. 

Gordon,  Ex  parte,  228. 

Gordon  v.  Drake,  201. 

Gormley  v.  Thompson-Lockhart 
Co.,  168. 

Gould  v.  Stanton,  339. 

Gould  v.  U.  S.  134. 

Governor,  206. 

Gov.  Ames,  148,  273. 

Grace  Girdler,  310. 

Grace  Seymour,  272. 

Gracie  D.  Chambers,  72,  159. 

Graham  v.  Oregon  R.  &  Nav. 
Co.,  20,  405. 

Grand   Turk,   29. 

Granger  v.  Providence  Washing- 
tun  Ins.  Co.,  58. 


Grant  v.  Poillon,  400. 
Grapeshot,  94,  97,  108. 
Gratitude,  392. 
Gray's    Harbor   Tugboat    Co.    v. 

Petersen,  130. 
G.  R.  Booth,  77,  80,  165. 
Great  Lakes  Dredge  &  Dock  Co.r 

In  re,  330. 
Great  Lakes  Towing  Co.  v.  Mills 

Transp.   Co.,  342. 
Great  Pacific,  96. 
Great  Western,  356,  365,  374. 
Great   Western    Ins.    Co.    v.   Fo- 

garty,  85. 
Greely  v.  Tremont  Ins.  Co.,  42. 
Greenock   S.   S.  Co.  v.   Maritime 

Ins.  Co.,  60. 
Greenshields  v.  Stephens,  45,  49. 
Greenville,  415. 
Greta  Holmfe,  329. 
Groves  v.  Volkart,  174. 
Guadeloupe,  The,  192. 
Guffey  Petroleum  Co.  v.  Borison, 

135. 
Guiding  Star,  107,  116,  382. 
Guildhall,   164. 
Gulden  v.  Hijos,  189. 
Gulfport,  136. 
Gulf  Stream,  323. 
Gulnare,  53,  75. 
Guy  v.  Donald,  34,  38,  39. 
Gypsum  Prince,  419. 

H 

Hahlo  v.  Benedict,  169. 

Halcyon,   14S. 

Hall  v.  Chisholm,  409. 

Hall  v.  Nashville  &  C.  R.  Co.,  92, 

Hambnrg-Amerikanische  Pack- 
etfahrt  Aktien  Gesellschaft  v. 
Gye,  236. 

Hamilton,  229,  242,  250,  327. 

Hamilton  v.  Pandorf,   166. 

Hammond  v.  Essex  Fire  &  Ma- 
rine Ins.  Co.,  29. 

Haney  v.  Baltimore  Steam-Pack- 
et Co.,  298. 

Iiannington  Court,  28. 

Hanson  v.   Haywood,  190. 

Hanson   v.   Waller,  216. 

Harmonides,  326. 

Harriot   Ann,   106. 


CASES  CITED 
[The  figures  refer  to  pages] 


541 


Co. 


Harrisburg,  228,  233. 
Harrison  v.  Fite,  12. 
Harrison  v.  Hughes,  34. 
Harry  Hudson  Smith,  362. 
Hart     v.     Pennsylvania    B 

164. 
Hartford,  249. 
Harvest  Home,  125. 
Hathor,  38. 
Hatteras,  108,  131. 
Hattie  M.  Bain,  122.  _ 

Haughton  v.  Empire  Marine  Ins. 

Co.,  72. 
Havana,  111. 
Hawkins,  In  re,  421. 
Haxby,  198,  202. 
Hay  v.  Le  Neve,  313. 
Hazard  v.  New  England  M.  ins, 

Co.,  55.  75. 
H.  B.  Foster,  125. 
H.  C.  Grady,  103. 
Head  v.  Amoskeag,  339. 
Hearne    v.    New    England    Mut. 

Marine  Ins.  Co.,  64. 
Heaven  v.  Pender,  213. 
Hekla,  137. 

Heller  v.  Pendleton,  17o. 
Helme  v.  Smith,  343. 
Hendriek  Hudson,  The,  16. 
Hercules,   42,   106,  259,   29o,   298, 

299,  307. 
Hermann,  328. 
Hermann    v.    Port    Blakely    Mill 

Co.,  201. 
Hettie  Ellis,  50. 
H.  E.  Willard,  400. 
Hezekiah  Baldwin,  15. 
Highland  Light,  228. 
Hill    Mfg.    Co.    v.    Providence   & 

N.  Y.  S.  S.  Co.,  359. 
Hills  v.  Leeds,  169. 
Hines   Lumber   Co.   v.   Chamber- 
lain, 158. 
Hiram   B.  Dixon,  109. 
Hispania,  311. 
Hobson  v.  Lord,  44. 
Hoffmans,  347. 

Hohl  v.  Norddeutscher  Lloyd,  193. 
Hokendaqua,  288. 
Holmes  v.  Oregon  &  C.   B.   Co., 

224. 
Holthe,  131. 


Homer  Ramsdell  Transp.  Co.  v. 

La  Compagnie  Generale  Trans- 

atlantique,  37,  3S. 
Hooper  v.  Robinson,  52. 
Hope,  52,  386. 
Hoquiam,  207. 
Home   v.    George    H.    Hammond 

Co.,  212. 
Hostetter  v.  Park,  156. 
Howard  v.  New   York,  2S2. 
Howard  v.  9,889  Bags   of   Malt, 

412. 
Howard  Fire  Ins.  Co.  v.  Norwich 

&  N.  Y.  Transp.  Co.,  80,  82. 
H.  P.  Baldwin,  405. 
H.  S.  Pickands,  200. 
Hubbard  v.  Roach,  109. 
Hubgh  v.  New  Orleans  &  C.  R. 

Co.,  223. 
Hudson,   321,   323,   415. 
Hugg  v.  Augusta  Ins.  &  Banking 

Co.,  84,  86,  158,  160. 
Hulthen  v.  Stewart,  176. 
Humarock,  150,  157. 
Humphreys  v.  Perry,  164. 
Hunter  v.  Parker,  334. 
Hydra,  295. 


I    F.  Chapman,  408. 

Illinois.  21,  279,  409. 

Ilos,  404. 

Imbrovek    v.    Hamburg-American 

Steam  Packet  Co.,  217. 
Imperial,  129. 
Indiana   Transp.   Co.,    Ex   parte, 

Indra  Line  v.  Palmetto  Phos- 
phate Co.,  37,  265. 

Indrani,  192,  211,  212. 

Indrapura,  193. 

Ingram  &  Boyle,  Ltd.  v.  Services 
Maritimes,  190,  348. 

International,  131.  . 

International  Nav.  Co.  v.  British 
&  Foreign  Marine  Ins.  Co.,  90, 

91. 

International  Nav.  Co.  v.  Farr  & 
Bailey  Mfg.  Co.,  191. 

International  Nav.  Co.  v.  Insur- 
ance Co.  of  North  America,  54. 

International  Nav.  Co.  v.  Lind- 
strom,  233,  242. 


542 


CASES   CITED 
[The  figures  refer  to  pages! 


Iona,   178. 

lonides  v.  Pender,  59. 

Ionides  v.  Universal  Marine  Ins. 

Co.,    81. 
Iredale    v.    China    Traders'    Ins. 

Co..  45. 
Iris,  116. 
I rm a,    3S0. 
Iroquois,   206. 
Iroquois  Transp.   Co.  v.   Delaiiey 

Forge  &  Iron  Co.,  117. 
Irrawaddy,  49,  1S5. 
Isaac  Allerton.  134,  149. 
Isaac  H.  Tillyer,  129. 
Isca,  128. 
Islander,  290. 
Itasca,   303. 
Ivanhoe,  249. 
I.  W.  Nicholas,  141. 


Jackson  v.  Insurance  Co.,  173. 
Jackson  v.  Julia  Smith,  103. 
Jacobsen  v.  Dallas  P.  &  A.  Nav. 

Co.,  317. 
Jahn  v.  Folmina,  163. 
Jakobsen  v.  Springer,  291,  295. 
James  v.  Brophy,  168. 
James   A.  Walsh.  278. 
James  Bowen,  275. 
James  G.  Swan,  398. 
James  II.  Prentice,  106. 
James  H.  Shrigley,  24. 
James  L.  Morgan,  287. 
James  T.  Furber,  22. 
Jamestown,  275. 
Jaminet  v.   American   Storage   & 

Moving  Co.,  160. 
Jamison  v.  New  York  &  P.  S.  S. 

Co.,  164. 
Janet  Court,  135,  147. 
Jansen  v.  Mines  Co.,  67. 
Jason.  42,  49.  1S6. 
Java,  209.  311. 
J.  C.  Pfluger,  124. 
J.  Doherty,  108.  131. 
Joanie,  165,  173. 

Jebsen  v.  A  Cargo  of  Hemp,  156. 
Jefferson,  136. 
Jeremiah,  394. 
Jersey    City,    212. 
J.  E.  Rumbell,  30,  105,  115,  3S6. 
Jerusalem,  383. 


Jesmond,  285. 

Jewell,  152. 

J.  G.  Gilchrist,  287,  297,  330. 

J.  L.  Bowen,  134. 

J.    M.    Guffey    Petroleum    Co.    v. 

Borison,  135. 
J.  N.  Gilbert,  311. 
Job  H.  Jackson,  303. 
John  Bossert,  257. 
John   G.    Stevens,   387,  388,   389, 

396. 
John  H.  Cannon,  50. 
John  H.  Pearson,  170. 
John  H.  Starin,  303. 
John  I.  Clark,  295. 
John  J.  Freitus,  386. 
John  Pridgeon,  Jr.,  298. 
John  R.  Penrose,  330. 
John  T.  Williams.  391. 
John  Twohy,  163. 
John  Wesley,  134. 
Johnson  v.  Chicago  &  P.  Elevator 

Co.,  200. 
Johnson   Lighterage   Co.   No.    24, 

153. 
Joice  v.  Canal  Boats  Nos.  1,758  & 

1.892,  415. 
Jones  v.  Andrews,  410. 
Jones  v.   Fell,  39. 
Jones  v.  Nicholson,  78. 
Jordan   v.   Warren   Ins.    Co.,   86, 

158. 
Joseph  B.   Thomas,  211. 
Joseph  F.  Clinton,  124. 
Joseph  John,  211. 
Joseph  Vaccaro,  39. 
J.  P.  Donaldson,  46. 
J.  S.  Warden,  24. 
Julia  A.  Trubee,  279. 
Julia  Blake,  46,  98. 
Julia   Luckenbach,  265. 
Jumna,  312. 
Juniata,  303. 
J.  W.  Tucker,  392,  397. 

K 

Kaffir  Prince.  152. 

Kaiser  Wilbelm  der  Grosse,  290. 

Kalorama,  102,  104. 

Karnak,  97. 

Kate,  103,  116,  1S9,  327. 

Kaupanger,  176. 

Kenilworth,  259. 


CASES   CITED 
[The  figures  refer  to  pages] 


54 :; 


Kennebec,  150. 
Kensington,   163,   164,   1ST. 
Kerr  v.   Union   Marine  Ins.   Co., 

58. 
Key  City,  105. 
Keystone,  405. 
Khedive,  292,  314. 
Kia  Ora,  134,  419. 
Kidston   v.   Empire   Marine   Ins. 

Co.,  86. 
Killeena,  141. 
Kimberley,  134. 
Kingston,  292. 
Kirkwood  v.  Miller,  323. 
Kish   v.   Cory,   178. 
Knapp,    Stout   &   Co.   v.   McCaff- 

rey,  131,  400. 
Knickerbocker  Ice  Co.  v.  Stewart, 

209,  235. 
Knott  v.   Botany   Worsted  Mills, 

1S7,  192. 
Koebel  v.  Saunders,  64. 
Koenigin  Luise,  410. 
Kronprinzessin  Cecilie,  173. 
Krnger  v.  Moel  Tryvan  S.  S.  Co., 

178. 
Kuhnhold    v.    Conipagnie    Gener- 
ate  Transatlantique,   193. 
Kunkle  Bros.,  130. 


La  Bourgogne,  242,  264,  301. 

Lackawanna,  153,  310. 

Lacy,  Case  of,  220. 

Lady  of  the  Lake,  21. 

Lake  Erie  Transp.  Co.  v.  Gil- 
christ Transp.  Co.,  270. 

Lake  Shore,  275. 

Lake  Steam  Shipping  Co.  v.  Ba- 
con, 187. 

Lamar  v.  Penelope,  135. 

Lamb  v.  Parkman,  161,  406. 

Lambert's  Point  Towboat  Co.  v. 
U.  S.,  414. 

Lamington,  153,  243. 

Larch,  337. 

Larsen,  Ex  parte,  27. 

Launch  B.  B.,  147. 

Laura  Lee,  326. 

Laurel,  21. 

Laverty  v.  Clausen,  357. 

Lawrence   v.   Platboat,    15. 

Lawrence  v.  Minturn.  50,  75,  361. 


Lazarus  v.  Barber,  419. 

L.  C.  Waldo,  278. 

Learned  v.  Brown,  337. 

Leathers  v.  Blessing,  210. 

Leeds  v.  Hills,  169. 

Lehigh   Valley  R.   Co.   v.  Cornell 

Steamboat  Co.,  325. 
Le  Jonet,  138. 
Leland,  331. 
Lelaud  v.  Medora,  415. 
Le  Lion,  299. 
Leon  v.  Galceran,  111. 
Leonard,  In  re,  354. 
Leonard  F.  Richards,  392. 
Leonard  Richards,  367. 
Leovy  v.  U.  S.,  12. 
Leverington,  291. 
Libra,  270. 

Lidgett  v.  Secretan,  74. 
Lillie  Laurie,  380,  381. 
Lindrup,  410. 
Lindsay,   William,   311. 
Lisbonense,  277. 
Liscard,  72. 
Little  v.  Hackett,  215. 
Liverpool  &  G.  W.  Steam  Co.  v. 

Phenix  Ins.  Co.,  92,  161. 
Livietta,  151. 
Livingstone,  S9. 
Lizzie  Burrill,  206,  207. 
Lizzie  Crawford,  307. 
Lizzie  Henderson,  257. 
Lizzie  Merry,  340. 
L.    N.    Dantzler    Lumber    Co.    v. 

Churchill,  174. 
Lobitos   Oil   Fields  v.   Adiniralty 

Com'rs,  81. 
Loch  Trool,  329. 
Lombard  S.    S.  Co.   v.  Anderson, 

340. 
London  Assurance  v.  Companhia 

De  Moagens  Do  Barreiro,  72. 
London   Merchant,    145. 
London  S.   S.  Ass'n  v.  Grampian 

S.  S.  Co.,  314. 
London  Transport  Co.  v.     Trech- 

man,  178. 
Long  Branch,  109. 
Longford,  152. 
Long    Island    R.    Co.    v.    Killien, 

287. 
Lord  Derby,  216. 


544 


CASES  CITED 
[The  figures  refer  to  pages] 


Lord   v.    Goodall,   N.   &  P.    S.   S. 

Co.,  353,  35S. 
Lottawanna.   The,  8,  11,  99,  113, 

114,  115,  238. 
Loughin  v.  McCaulley,  374. 
Louisa,  130. 
Louisiana,  246. 
Louisville    Underwriters,    In    re, 

412.       " 
Lowber  v.  Bangs,  169,  173. 
Lowlands,  402. 
Lowtber  Castle.  124. 
Lucille,  280,  326,  332. 
Luckenbach  v.  Pearce,  120. 
Luckenbach    v.    W.    J.    MeCahan 

Sugar  Refining  Co.,  63,  352. 
Ludgate  Hill,  109. 
Lusitania.  363. 
Luzerne,  307,  311. 
Lydia,  135. 
Lyndhurst,   118. 
Lyon  v.  Mells,  61.  • 
Lyra,  414. 

M 

Mabey,  310,  420. 

Mac,  15. 

Me  Andrew  v.  Adams,  175. 

McCaulley  v.  Philadelphia,  305. 

McDonald,  422. 

McDonald  v.  Mallory,  242. 

McDonough       v.       International 

Navigation  Co.,  213. 
Mclver   v.    Tate    Steamers,   Ltd., 

60,  172. 
Mack  S.  S.  Co.  v.  Thompson,  116. 
McKinlay  v.  Morrish,  406. 
McLanahan     v.     Universal     Ins. 

Co.,  58,  63. 
McMullin  v.  Blackburn,  151. 
McXiel,  Ex  parte,  231. 
Macomber  v.  Thompson,  27. 
McPhail  v.  Williams,  357. 
McRae  v.   Bowers  Dredging  Co., 

15,  116. 
Madras,  125. 
Magdalen,  148. 
Maggie  Hammond,  111. 
Maggie  J.  Smith.  332. 
Mahar  &  Burns,  276. 
Main,  121,  257,  371. 
Major  William  H.  Tantum,  43. 
Maling,    290,    318. 


Maltby  v.  A   Steam  Derrick,  15. 

Manchester  Liners  v.  Virginia- 
Carolina  Chemical  Co.,  170. 

Manchioneal,  39,  332. 

Manhasset,  244,  297. 

Manhattan,  318. 

Manigault  v.   Springs,  12. 

Manitoba,  191,  274,  314. 

Manning  v.  International  Mer- 
cantile Marine  Co.,  243. 

Marcardier  v.  Chesapeake  Ins. 
Co.,  77,  78. 

Marcellus,  36. 

March,  175. 

Marengo,  339. 

Margaret,  130,  249. 

Margaret  B.  Roper,  272. 

Margaret  J.  Sanford,  328. 

Margetts  &  Ocean  Ace.  &  Guar- 
antee Ass'n,  246. 

Marguerite,  279,  282. 

Marguerite  Molinas,  135. 

Maria  Martin,  314. 

Maria  &  Elizabeth,  375. 

Marine  Ins.  Co.  of  Alexandria  v. 
Tucker,  66. 

Marion  Chilcott,  207. 

Marion  S.  Harris,  106. 

Marion  W.  Page,  279. 

Mariska,  322. 

Maritime  Ins.  Co.  v.  M.  S.  Dollar 
S.  S.  Co.,  70. 

Mark  Lane,  122. 

Marpesia,  310,  31S,  405. 

Marpessa,  329. 

Marshall  v.  McXear,  176. 

Martello,  259,  264. 

Martha  E.  Wallace,  258,  271. 

Martin  v.  Delaware  Ins.  Co.,  65. 

Martin  v.  West,  198. 

Mary,  17. 

Mary  A.  Bird.  279. 

Mary  Adelaide  Randall,  166. 

Mary  A.  Tryon,  131. 

Mary  Augusta,  273. 

Mary  B.  Curtis,  330. 

Mary    Bell.    102. 

Mary  Buhne,  272. 

Mary   E.   Dana,   145. 

Mary   Gratwick,   29. 

Mary  Powell,  2S4. 

Mary  Stewart,  200. 

Mason,    130. 


CASES   CITED 
[The  figures  refer  to  pages] 


545 


Mason  v.  Ervine,  38. 

Maueh  Chunk,  295,  366. 

Maude,  135. 

Maurice,  129. 

Max  Morris,  221,  243. 

May  v.  Keystone  Yellow  Pine  Co., 
42. 

Mayflower,   109. 

May  McGuirl,   130. 

M.  B.  Stetson,  137. 

Mecca,  197. 

Mediana,  329. 

Mellona,  331. 

Memphis  &  C.  R.  Co.  v.  Reeves, 
331. 

Memphis  &  Newport  Packet  Co. 
v.  Hill,  206. 

Mencke  v.  Cargo  of  Java  Sugar, 
171. 

Menominee,  327. 

Mercantile  S.  S.  Co.  v.  Tyser,  81. 

Mercedes,  404. 

Merchant  Prince,  311,  312. 

Merchants'  Mut.  Ins.  Co.  v.  Bar- 
ing, 53. 

Merchants'  Mut.  Ins.  Co.  v.  Ly- 
man, 58. 

Merchants'  &  Miners'  Transp.  Co. 
v.  Hopkins,  260,  281. 

Merrimac,  37. 

Merritt  &  Chapman  Derrick  & 
Wrecking  Co.  v.  Cornell  Steam- 
boat Co.,  303,  311. 

Metamora.   271. 

Mexican  Prince,  192. 

Mexico.  2S2. 

Mever.  In  re,  357,  372. 

Miami,  215. 

Michigan  Cent.  R.  Co.  v.  Vree- 
land.  235. 

Middlesex,  243. 

Milanese,  265. 

Miller  v.  Insurance  Co.,  75. 

Miller  v.  U.  S.,  408. 

Milwaukee,  269. 

Minna,  24.  404. 

Minneapolis.  St.  P.  &  S.  S.  S.  Co. 
v.  Manistee  Transit  Co.,  46. 

Minnehaha,  125. 

Minnetonka,  402. 

Minnie,  299. 

Minnie  C.  Taylor,  279. 

Minturn  v.  Maynard,  21. 

Hucur;s.ADir.(2D  Ed.)— 35 


Mira   A.   Pratt,  137. 

Missouri   Pac.   R.  Co.   v.   McFad- 

den,  163. 
Mitsui  v.  St.  Paul  Fire  &  Marine 

Ins.  Co.,  159. 
M.  M.  Caleb,  311. 
M.  Moran,  276,  295. 
Mobile  &  M.  Ry.  Co.  v.  Jurey,  92 
Mohawk.   336. 
Monarch,  139,  408. 
.Montana.  161,  162. 
Montapedia,  2S. 
Monte  A,  402. 
Montello,   336. 
Montgomery  v.  Henry,  340. 
Montgomery    v.    Indemnity    Mut. 

Ins.  Co.,  43. 
Montgomery  v.  Insurance  Co.,  42. 
Montgomery  v.  Wharton,  340. 
Monticello,   260. 
Moore   v.  American  Transp.   Co.. 

13. 
Moore  v.  U.  S.,  176. 
Moores  v.  Underwriters,  62. 
Moran  v.   New  York  Cent.  &  H. 

R.  R.  Co..  125,  318,  367. 
Moran  v.  Sturges.  407. 
Morgan  v.  Castlegate  S.  S.  Co.,  31. 
Morgan  v.  Shinn,  344. 
Morgan  &  Price  v.  Insurance  Co. 

of  North  America,  8. 
Moses       v.       Hamburg-American 

Packet  Co.,  1S7. 
Mt.  Desert,  104. 
Mount  Hope,  130. 
Mourne,  276,  285,  293. 
Mudlark,  16. 
Mini-field.  176. 
Munich    Assur.    Co.    v.    Dodwell 

54. 
Munson  v.  Standard  Marine  Ins 

Co.,  93. 
Murrell,  184. 
Mutual,  40S. 
M.  Vandercook.  381. 
My.rs   v.   Willis,  344. 
Mystic,  3S4. 

N 

Nacoochee,  332. 
Nahor,  273. 

Nantes  v.  Thompson,  54. 
Nash  v.  Bohlen,  22. 


546 


CASES   CITED 

[The  figures  refer  to  pages] 


Nathaniel  Hooper,  157,  15S. 
Nebraska,  106. 
Negaunee,  266. 
Neil  Cochran,  19S. 
Neilson  v.  Coal,   Cement  &   Sup- 
ply Co.,  411,   '22. 
Neilson    v.    Rhine    .Shipping    Co., 

26. 
Nellie  T.,  340. 

Nelson  v.  Nelson  Line,  190. 
Nelson  v.  "Woodruff,  163. 
Neptune,  The,  98,  370. 
Nesbitt  v.  Lushington,  75. 
Neshaminy,  136. 
Nestor,  341. 
Nettie  Quill,  18S. 
Nettie  Woodward,  3S9. 
Nevada,  297. 
Newburgh,  303. 
New  England,  1S7,  409. 
New  England  Marine  Ins.  Co.  v. 

Dunham,  19. 
New    England    Mut.    Ins.    Co.    v. 

Dunham,  51. 
New  England  Transp.  Co.,  In  re, 

392. 
Newman  v.  Walters,  140. 
New    Orleans    Ins.   Co.    v.    Albro 

Co.,  77. 
Newport  News,  289. 
Newton    Creek    Towing    Co.     v. 

iEtna  Ins.  Co.,  245. 
New  York,  250,  282,  2S5,  319,  409, 

418. 
New  York  Bowery  Fire  Ins.  Co. 

v.  Insurance  Co.,  57. 
New  York  C.  R.  Co.  v.  Lockwood, 

163. 
New    York.    P.    &    N.    R.    Co.    v. 

Cooper.    215. 
New  York  Trust  Co.  v.  Bermuda- 
Atlantic  S.  S.  Co.,  104. 
New      York     &     Long     Branch 
Steamboat  Co.  v.  Johnson,  216. 
Ngapoota,  285. 
Niagara,  60,  160,  190,  250. 
Nicaragua.  167. 
Nichols,  :;::^. 
Nikita,  41.-.. 
Ninirod,  251. 
Niobe,  12S. 
Niphon's  Crew.  25. 
No.  4,  290. 


Nome       Beach       Lighterage       & 
Transp.   Co.   v.   Munich  Assur. 
Co.,  62. 
Non  Pareille,  295. 

Nora,  402. 

Nordamerika,  264. 

Noreuga,  140,  332. 

Norfolk  Sand  «fc  Cement  Co.  v. 
Owen.   105. 

Norma,  152. 

Normandie,   2S6.   327. 

North  Alaska  Salmon  Co.  v.  Lar- 
sen,  24. 

North  Atlantic  Dredging  Co.  v. 
McAllister  Steamboat  Co.,  167. 

North  Carolina,  148. 

Northern   Belle,   155. 

Northern  Light,  96. 

Northern  Pac.  R.  Co.  v.  Babcock, 
243. 

Northern  Queen,  303. 

Northfiekl,  282. 

North  of  England  Iron  S.  S.  Ins. 
Ass'n  v.  Armstrong,  89. 

North  Pac.  S.  S.  Co.  v.  Hall 
Bros.  Marine  Ry.  &  Shipbuild- 
ing Co..  17,  20,  117,  232. 

North  Point,  266. 

Northrop  v.  Gregory,  409. 

North  Star,  314,  324. 

Northwestern  Car  Co.  v.  Hop- 
kins, 409. 

Northwestern  S.  S.  Co.  v.  Mari- 
time Ins.  Co.,  58. 

Norwegian  S.  S.  Co.  v.  Washing- 
ton, 121. 

Norwich  &  N.  Y.  Transp.  Co.  v. 
Insurance  Co.  of  North  Amer- 
ica, 43. 

Norwich  &  N.  Y.  Transp.  Co.  v. 
Wright,  23S,  347,  356. 

Nugent  v.  Smith,  161. 

o 

Oades  v.  Pfohl,  169. 
Oakes,  T.  F.,  205. 
Oakes  v.  Richardson,  22. 
O'Brien  v.  Miller.  97,  369,  406. 
O'Brien  v.  1,614  Bags  of  Guano, 

412. 
O'Brien  v.  Stephens,  401. 
O'Brien  Bros.,  367. 


CASES  CITED 
[The  figures  refer  to  pages] 


547 


Occidental    &    O.    S.    S.    Co.    v. 

Smith,  290. 
Oceana,  104. 
Ocean  Belle,  339. 
Oceania  Vance,  262. 
( teeanie,  36. 
Ocean  Spray,  24,  26. 
Ogdensburgh,  275. 
Ogemaw,  301. 
Ohio,  2S7. 
O.  H.  Vessels,  103. 
O'Keefe  v.  Staples  Coal  Co.,  199. 
Ole  Oleson,  343. 
Oler,  The,  13. 
Olga,  384. 

Oliver,  258,  291,  300. 
Olsen  v.  Smith,  33. 
Olympia,  311. 
Omer,  97,  391. 
Oneida,  1S9. 
Onoko,  331. 
Oporto,  2S5,  2S9. 
Oregon,  36.  257,  297,  404. 
Orient   Mut.    Ins.    Co.   v.   Adams, 

76,  83,  88. 
Orion,  329. 

Orlando  v.   Wooten,  334. 
Orleans,  337,  339. 
Oscanvan     v.     Winchester    Arms 

Co.,  70. 
Oscar  Townsend,  301. 
Osceola,  205,  206. 
Osprey,  246. 


Pacific,  318. 

Pacific  Coast  S.  S.  Co.  v.  Ban- 
croft-Whitney Co.,  105,  404, 
413. 

Pacific  Creosoting  Co.  v.  Thames 
&  Mersey  Marine  Ins.  Co.,  63. 

Pacific  Mail  S.  S.  Co.  v.  New 
York,  H.  &  R.  Min.  Co.,  49. 

Pacific  Mail  S.  S.  Co.  v.  Schmidt, 
24. 

Painter  v.  Wick  &  P.  Steam 
Shipping  Co.,  323. 

Panama  R.  Co.  v.  Napier  Ship- 
ping Co.,  19S,  203,  243. 

Pandorf  v.  Hamilton,  79. 

Paoli,  2S1. 

Paragon,  378 

Passaic,  301. 

Patapsco,  102. 


Patapsco  Ins.  Co.  v.  Coulter,  77. 

Patroclus,  257. 

Pawnee,  278. 

P.  Caland,  254. 

Pederson  v.  Spreckles,  129. 

Pekin,  276,  27S.  289. 

Pelham  v.  Rose.  400. 

Pelican,  143. 

Pendleton  v.  Benner  Line,  352. 
360. 

Peninsular  &  O.  S.  S.  Co.  v.  At- 
lantic Mut.  Ins.  Co..   86. 

Pennsylvania.   252.   264. 

Pensher,  331. 

Peoples  Ferry  Co.  of  Boston  v. 
Beers,  116. 

Pere  Marquette,  372. 

Perkiomen,   265. 

Perry  v.  Haines.  197. 

Peters  v.  Warren  Ins.  Co.,  76. 

Pettit  v.  Charles  Hemje.  337. 

Peyroux  v.  Howard,  10. 

Pfluger,  J.  C,  124. 

Phenix  Ins.  Co..  Ex  parte,  200. 
238,  239.  240,  355. 

Philadelphia,  269,  326. 

Philadelphia,  W.  &  B.  R.  Co.  v. 
Philadelphia  &  Havre  de  G. 
Steam  Towboat  Co.,  202. 

Philadelphia  &  Havre  de  Grace 
Steam  Towboat  Co.  v.  Philadel- 
phia, W.  &  B.  R.  Co.,  202. 

Philadelphian.  25S.  406,  421. 

Philomena,  391. 

Phoenix  Const.  Co.  v.  Poughkeep- 
sie,   198. 

Pickup  v.  Insurance  Co.,  62. 

Pieve    Superiore,   157. 

Pinna.  26. 

Pioneer  Fuel  Co.  v.  McBrier,  156. 

Piper  Aden  Goodall  Co.,  In  re, 
188. 

Pitgaveney,  307. 

Pleasure  Bay,  143. 

Pleroma,  52,  95,  401. 

Plummer  v.  Webb.  215. 

Plymouth,  199,  305. 

Plymouth  Rock.  109. 

Poconoket,  333. 

Pool  Shipping  Co.  v.  Samuel,  176. 

Pope  v.  Swiss  Lloyd  Ins.  Co.,  60. 

Port  Caledonia,   150. 

Porter  v.  Friendship,  135. 

Porter  v.  Sea  Witch,  391. 


548 


CASES   CITED 
[The  figures  refer  to  pages] 


Porto  Alexandre,  407. 

Portuguese  Prince,  193. 

Post  v.  Jones,  419. 

Postal  Telegraph  Cable  Co.  v.  P. 

Sanford   Koss,   19S. 
Potomac,  328. 
Potomac  Steamboat  Co.  v.  Baker 

Salvage  Co.,  134. 
Potter  v.  Ocean  Ins.  Co.,  43. 
Potter  v.  Suffolk  Ins.  Co.,  75. 
Powell  v.   Gudgeon,  S3. 
President   Lincoln,   270. 
Princess  Alice,   124. 
Prinz  Oskar,  298. 
Professor  Morse,  197. 
Protector,  332. 
Providence,  330. 
Providence   Washington   Ins.    Co. 

v.  Bowring,  54. 
Providence  &  N.  Y.   S.  S.  Co.  v. 

Hill  Mfg.  Co..  351,  375. 
Prussia,  156,   169. 
Public  Bath  No.  13,  The,  16. 
Puritan,  338. 
Pyman  S.  S.  Co.  v.  Mexican  Cent. 

R.  Co.,  176. 


Quarman  v.  Burnett,  128. 

Queen,  39,  105,   413. 

Queen  v.  Judge,  40,  51,  217. 

Queen  City,  287. 

Queen  of  the  Orwell.  306. 

Queen   of    the    Pacific,    105,    404, 

413. 
Quickstep,  128. 
Quinette  v.  Bisso,  243,  264. 
Quinlan  v.   Pew,   358. 

R 

Racine,    327. 

Raisby,  152. 

Raithmoor,  15,  197.  203. 

Raleigb,    29. 

Ralli  v.  Janson,  85. 

Ralli     v.     Societa     Anonima     Di 

Navigazione    a    Vapore    G.    L. 

Premuda,  49,  51,  318. 
Ralli  v.  Troop,  46,  50. 
Rambler,  137. 
Ratata,  130. 

Raymond  v.  Tyson,  168. 
Rebecca,  157,  346. 


Red  "R'"  S.  S.  Co.  v.  North  Ameri- 
can Transport  Co.,  175. 

Reed  Bros.  Dredge  No.  1,  102. 

Rees  v.  U.  S.,  151. 

Reichert  Towing  Line,  In  re,  354. 

Reid  v.  Fargo.  164,  421. 

Reilly    v.    Philadelphia    &    R.    R. 
Co.,  412. 

Reischer  v.  Borwick,  331. 

Relf  v.  Maria,  The,  26,  27,  370. 

Reliance    Lumber    Co.    v.    Roths- 
child, 51. 

Relief,    139. 

Rence,   205. 

Rend,  In  re,  274. 

Resolute,  30,  407. 

Revens  v.  Lewis,  336. 

Reward,  124. 

Revnolds  v.  Joseph,  The,  178. 

Rhondda,  285,  2S9,  291. 

Richardson  v.  Harmon,  239,  356. 

Richelieu  &  O.  Nav.  Co.  v.  Bos- 
ton Marine  Ins.  Co.,  60,  93. 

Richmond   v.   New  Bedford  Cop- 
per Co.,  399. 

Richmond  Dredging  Co.  v.  Stand- 
ard American  Dredging  Co.,  15. 

Rickmers,  330. 

Riga,  109. 

Roach  v.  Chapman,  117.  231. 

Roanoke,  49,  118,  134,  151. 

Robert  Graham  Dun,  25S,  2S3. 

Robert  R.  Kirkland.  340. 

Robert  S.  Besnard,   124. 

Robert  W.  Parsons,  13. 

Roberts  v.  Huntsville,  The,  408. 

Robertson  v.  Baldwin,  27. 

Robins  Dry  Dock  &  Repair  Co.  v. 
Chesbrough,  418. 

Robinson  v.  Detroit  &  C.  Steam 
Nav.  Co.,  243. 

Robinson   G.    M.   Co.   v.   Ins.   Co., 
75. 

Rochester,    356.    374. 

Rockaway,  13,  260. 

Rock  Island  Bridge,  In  re.  199. 

Rogers  v.  iEtna  Ins.  Co.,  76. 

Rogers    v.    Brown,   411. 

Rolf,  272. 
Romance,  251. 
Rosalia,  318. 
Rose   Culkin.   L'79. 
Ross,  In  re,  28. 


CASES   CITED 
[The  figures  refer  to  pages] 


549 


Ross  v.  Merchants'  &  Miners' 
Transp.  Co.,  301. 

Rounds  v.  Cloverport  Foundry  & 
Mach.  Co.,  111. 

Rowson  v.  Transport  Co.,  190. 

Royal,  129. 

Royal  Kxcli.  Assur.  v.  Graham  & 
Morton  Transp.  Co.,  ST. 

Roymann  v.  Brown,  212. 

R.  P.  Fitzgerald,  191. 

R.  R.  Kirkland,  252,  299. 

Ruckers,  219. 

Rucknian  v.  Merchants'  Louis- 
ville Ins.  Co.,  S3. 

Rupert  City,  31,  10S,  120,  121, 
386. 

Rusk  v.  Freestone,  3S9. 

Ryley  v.  Philadelphia  &  R.  R. 
Co.,  236. 


Sabine,  141,  153. 

.Sagamore,  243,  265. 

Saginaw,   329.  * 

St.  Charles,  134. 

St.  David,  217. 

St.  Jago  de  Cuba,  98. 

St.  Johns,   369,  375. 

St.   Joseph,  123. 

St.  Lawrence,  113,  115,  238. 

St.  Paul,  145,  152,  265. 

St.  Paul  Fire  &  Marine  Ins.  Co. 
v.  Knickerbocker  Steam  Tow- 
age Co.,  54. 

St  Paul  Fire  &  Marine  Ins.  Co. 
v.  Pacific  Cold  Storage  Co.,  63. 

Sallie  Ion,  207. 

Saluda,  36. 

Salutation,  130. 

S.    A.    MeCaulley,    31S.   354,    373. 

Sampayo  v.  Salter,  159. 

Samson,  326,  401. 

Samuel  v.  Assurance  Co.,  74. 

Samuel  Little,  392. 

Samuel  Marshall,  102,  104,  116. 

Samuel  Morris,  392. 

San  Cristobal,  141. 

Sandberg  v.  McDonald.  26. 

Sanders  v.  Munson,  169. 

Sanderson  v.  Collins,  216. 
Sandringham,  134,  146,  147,  149: 
152. 


San  Fernando,  51. 
Sanford  &  Brooks  Co.  v.  Colum- 
bia Dredging  Co.,  172. 
San  Guglielmo,  104. 
San  Pedro,  375. 
San  Raphael,  3S6. 
Santa  Ana,  50. 
Santipore,  151. 
Sapphire,  300,  314. 
Sara,  3S4. 
Saracen,  39S. 
Sarah  Ann,  105,  413. 
Saratoga,   139,  212. 
Sarmatian,  247,  297. 
Sarpen,  140. 
Saylor  v.  Taylor,  15,  24,  3S0,  384, 

397. 
Scaramanga  v.  Stamp,  66,  173. 
Schloss  v.  Stevens,'  79. 
Schmidt  v.  Keyser,  17S. 
Schwan,  310. 

Schwartz    v.    Insurance    Co.    of 
North  America,  6S. 

Scotia,  121,  279. 

Scotland,    8,    23S,    327,    354,    365, 
374. 

Scull  v.  Raymond,  33S,  343. 

Seaboard,  156. 

Seabrook    v.    Raft    of    Railroad 
Cross-Ties,  17. 

Sea  Foam,  392. 

Seagrave   v.   Insurance   Co.,   53. 

Sea   Gull,  228. 

Seaman  v.  Adler,  160. 

Seaman    v.     Enterprise    Fire    & 
Marine  Ins.  Co.,  75. 

Seamans  v.  Loi'ing,  73. 

Sea  Spray,  393. 

Seath  v.  Moore,  333. 

Sea  Witch,  3.84. 

Seefahrer,  163. 

Seguranca,  121,  178. 

Selina,  380. 

Senator  Rice,  278. 

Severn,  303. 

Shaw  v.  Thompson,  414. 

Shawe  v.  Felton,  74. 

Sheppard  v.  Taylor,  369,  370. 

Shrrloek  v.  Ailing.  230. 

Shewalter   v.    Carolina,    C.    &    O. 
Ry.,  235.  236. 

Shield  v.  Wilkin,  175. 

Shoe  v.  Craig,  44,  46. 


550 


CASES   CITED 
[The  figures  refer  to  pages] 


Shoe  v.   George  F.  Craig  &  Co., 

44,  46. 
Sideracudi  v.  Mapes,  36,  38,  40. 
Siebert  v.  Patapsco  Ship  Ceiling 

&  Stevedore  Co.,  209. 
Silver  Shell,  205. 
Silver  Star,  134. 
Silvia,   191. 

Simons  v.  Jefferson,  197. 
Siren.  407. 
Sir  Henry  Constable,  Case  of,  197, 

220. 
Sir  William  Armstrong,  134,  150. 
Slayton,  Ex  parte,  374. 
Smith  v.  Booth,  354. 
Smith  v.  Burnett.  199. 
Smith  v.  Dart,  174. 
Smith  v.  Towbpat  Co.,  128. 
Smith  v.  Voss,  291. 
Snark,  203,  304. 
Snow  v.  CaiTutb.,  160. 
Snow  v.   Edwards,   409. 
Snow  v.  Perkins,  49. 
Snyder  v.  Home  Ins.  Co.,  59. 
Sorners  N.   Smith,  130. 
Sorensen  v.  Alaska  S.  S.  Co.,  205. 
Sorensen  v.  Keyser,  176. 
Southard  v.   Brady,  413. 
South  Ton  st.  104. 
Southerland-Innes  Co.  v.  Thynas, 

165. 
Southern,  251. 

Southern    Express    Co.    v.    Cald- 
well, 164. 
Southern  Log  Cart  &  Supply  Co. 

v.  Lawrence,  15. 
Southern  Pac.  Co.  v.  Jensen,  111, 

20S,  232. 
Southwark.  173,  190,  413. 
Southworth  v.  Smith,  339. 
Spauldiug,    3S1. 
Spedden  v.  Koenig,  336,  343. 
Spencer,  265. 
Spencer  v.  Dalles  P.  &  A.  Nav. 

Co.,   287. 
Spiegel,  289. 
Sprague  v.  140  Barrels  of  Flour, 

135. 
S.   Shaw,  301. 
Stanton  v.  Richardson,  174. 
Stapp  v.   Clyde.  The,   13. 
Stiii-  of  Hope,  42,  43,  44. 


Staten  Island  &  N.  Y.  Ferry  Co. 
v.  Thomas  Hunt,  135. 

State  of  Maryland  v.  Miller,  203. 

Steam  Dredge  A.,  392. 

Steamship  Carrisbrook  Co.  v. 
London,  43. 

Steamship  Overdale  Co.  v.  Turn- 
er, 22. 

Steamship  Rutherglen  Co.  v. 
Howard  Houlder  &  Partners, 
178. 

Steamship  Wellesley  Co.  v.  Hoop- 
er, 190. 

Stedman  v.  Feidler,  343. 

Steel  v.  State  Line  S.  S.  Co.,  61, 
172. 

Steele  v.  Thacher,  215. 

Sterling,  109,  319. 

Stern  v.  La  Compagnie  Generale 
Transatlantique,  233. 

Stetson  v.  Insurance  Co.  of  North 
America,  63. 

Stout  v.  Weedin,  27. 

Strabo,  201. 

Strathdon,  349. 

Strathleven,  303. 

Strathleven  S.  S.  Co.  v.  Baulch, 
40. 

Strathnevis,    151. 

Strong  v.  Holmes,  374. 

Student,  213. 

Sturgis  v.  Boyer,  125. 

Sultana,  24. 

Sun  Mut.  Ins.  Co.  v.  Ocean  Ins. 
Co.,  56,  71. 

Sun  Printing  &  Pub.  Ass'n  y. 
Moore,  168. 

Sunnyside,  311. 

Susan,   145. 

Svensen  v.  Wallace,  44. 

Swift,  203. 

Swiftsure,  145, 

Sydney  Cove,  The,  370. 

Sylvan  Glenn,  244. 

Syracuse,  130. 


Tactician,  37. 
T.  A.  Goddard,  123. 
Tampico,   1st. 

Tantuin,  Major  William  H.,  43. 
Tarabochia    \.    American    Sugar 
Refining  Co.,  49. 


CASKS   CITED 
[The  figures  refer  to  pages] 


551 


Tasmania.    131. 

Taylor  v.  Brigham,  343. 

Taylor  v.  Carryl,  407. 

Taylor  v.  Harwood,  422. 

Taylor  v.  Steamship  Co.,  78. 

Tenedos.    191. 

Teresa  Aecama,  134. 

Test,  293. 

Texas,  282. 

T.  F.  Oakes,  205. 

Thames  &  M.  Marine  Ins.  Co.  v. 

Hamilton,  79. 
Thames    &    Mersey    Marine    Ins. 
Co.   v.   Pacific   Creosoting  Co., 
63.' 

Themistocles,  205. 

Theta,  218. 

Thingvalla,  274. 

Thomas  B.  Garland,  284. 

Thomas  Fielden,  149. 

Thomas  Ililyard,  141. 

Thomas  Jefferson,  10. 

Thomas  Melville,  405. 

Thomas  Morgan,  392. 

Thomas  P.  Sheldon,  401. 

Thomas  Sherlock,  106. 

Thomas  W.  Haven,  135. 

Thompsen  v.  Finden,  341. 

Thompson  v.  Darden,  33. 

Thomson  v.  Brocklebank,  167. 

Thomson  v.  Wooster,  408. 

Thurber  v.  Fannie,  103. 

Tiger,  106. 

Tijuea,  151. 

Tillie,  252. 

Tillmore  v.  Moore,  216. 
Titanic  v.  Mellor,  354. 
Toledo,  198.  _ 

Toledo  S.  S.  Co.  v.  Zenith  Transp. 

Co.,  399.  ,  n      _ 

Tonawanda  Iron  &  Steel  Co.,  In 

re,  205. 
Tornado,  159. 
Toronto,  193. 

Towle  v.  Great  Eastern,  140. 
Trader,  307. 

Transfer  No.  3,  312. 

Transfer  No.  12,  233. 

Transfer  No.  17,  295. 

Transfer  No.  21,  367. 

Trask  v.  Duvall,  160. 

Trave,  259. 

Traveller,  146. 


Treasurer,  157,  162. 

Tremont,  329. 

Trenton,  414. 

Tribune,   22. 

Tropical  Fruit  S.  S.  Co.  v.  Towle, 

205. 
True  Blue,  147. 
Tucker  v.  Alexandroff,  17,  37. 
Tunno  v.  Betsina,  338,  339. 
Turbett  v.  Dunlevy,  215. 
Turner,  Case  of.  27. 
Turner  v.  Haji,  179. 
Turquoise,  291. 
Tweedie  Trading  Co.  v.  Western 

Assur.  Co.,  60. 
2,098  Tons  of  Coal,  In  re,  174. 
T   W.  Wellington,  374. 


u 

Uhla,   199. 

Ulrica,   386. 

Umbria,  263,  204,  326,  327,  328. 

Undaunted,  130,  135. 

Underwriter,  102. 

Union,  408. 

Union  Fish  Co.  v.  Enckson,  30, 

112,  232. 
Union  Ins.  Co.  v.  Smith,  63. 
Union  Stockyards  Co.  v.  Chicago, 

B.  &  Q.  R.  Co.,  325. 
Union  S.  S.  Co.  v.  Latz,  297. 
United  Shores,  117. 
U.  S.  v.  Alden,  27. 
U.  S.  v.  Ansonia  Brass  &  Copper 

Co.,  333. 
U.  S.  v.  Burlington  &  Henderson 

County  Ferry  Co.,  13,  16. 
U.   S.   v.  Cornell  Steamboat  Co., 

134,  399. 
U.  S.  v.  Hall,  304. 
U    S.   v.   Mollie,   408. 
U.  S.  v.  New  York  &  O.  S.  S.  Co., 

192. 
U.    S.    v.    North    German    Lloyd, 

198. 

U.  S.  v.  St.  Louis  &  M.  V.  Transp. 
Co.,  249. 

U.   S.  v.  Taylor,   148. 

United  Transportation  &  Lighter- 
age Co.  v.  New  York  &  Balti- 
more Transp.  Line,  340. 

Upton  Castle,  251. 

Urania,  40. 


552 


CASES   CITED 
[The  figures  refer  to  pages] 


Urko  Mendi,  137. 

Ursula   Bright   S.   S.   Co.  v.  Am- 

sinck,  54,  86. 
Utopia,  The,  203,  304. 


Valencia,  102,  103. 

Vallette  Dry  Dock  Case,  15,  17. 

Vanadis,   329. 

Van  Der  Duyn,  20G. 

Vane  v.  A.  M.  Wood  &  Co.,  160. 

Veazie  v.  Moor,  13. 

Vedamore.  29S. 

Velocity,  278. 

Vera,  290. 

Vera  Cruz,  227,  244. 

Veritas,  387,  393. 

Victoria,  130. 

Victory,  164,  249,  285,  2SS,  316. 

Vim,    405. 

Vindobala,  343. 

Violetta,  125. 

Virgin,  97. 

Virginia,  260. 

Virginia  Ehrman,  129. 

Virginian,  276. 

Virgo,  311,  378,  381. 

Vortigern,  172. 

Vueltabajo,  210. 

W 

Wager  v.  Providence  Ins.  Co.,  92. 

Waldo,  343. 

Walker  v.  Western  Transp.  Co., 
348. 

Wallace  v.  Cargo  of  292,000  Feet 
of  Pine  Boards,  175. 

Walsh,  In  re,  128. 

Walter  Adams,   106. 

Ward  v.  Banner,  131. 

Ward  v.  Thompson,  20. 

War-field,  196. 

Waring  v.  Clarke,  11. 

Warkworth,   311,   358. 

Warner  v.  Boyer,  354. 

Warrior,  279. 

Washburn  &  M.  Mfg.  Co.  v.  Re- 
liance M.  Ins.  Co.,  85,  93. 

Washington,    The,   319. 

Waterhouse  v.  Rock  Island  Alas- 
ka Mining  Co.,  172. 


Waters   v.   Merchants'   Louisville 

Ins.  Co.,  77. 
Water  Witch,  408. 
Watt  v.  Cargo  of  Lumber,  408. 
Watts    v.  Camors,   169. 
Watts,  Watts  &  Co.  v.  Unione  Aus- 

triaca  di  Navigazione,  421. 
W.  B.  Cole,  335. 
Weaver  v.  S.  G.  Owens,  109. 
Webb  v.  Peirce,  344. 
Webster  v.  Seekamp,  109. 
Weinman  v.  De  Palma,  304. 
Weir  v.  Steamship  Co.,  172. 
Wells  v.  Ilopwood,  75. 
West  v.  Columbian  Ins.  Co.,  65.    . 
West  Friesland,  337. 
Westerly,    130. 
Western  Fuel  Co.  v.  Garcia,  112, 

233. 
Whealton   Packing   Co.   v.   iEtna 

Ins.  Co.,  60. 
Whitcomb   v.   Emerson,   365,   366. 
White  v.  Cynthia,  409. 
White  v.  Island  Transp.  Co.,  374. 
White's  Bank  v.  Smith,  335. 
Whiteash,  287. 
Wbitelaw,  In  re,  375. 
White  Squall,  408. 
Whitlieburn,  190,  289. 
Whittall    v.    Rathken's    Shipping 

Co.,  175. 
Wilbert  L.    Smith,   297. 
Wildcroft,   191,   192. 
Wilder     v.     Inter-Island     Steam 

Xav.  Co.,  25. 
Wilkinson  v.  Hyde,  85. 
Willamette  Valley,  210. 
Willard  v.  Dorr,  412. 
Willcox  Peck  &  Hughes  v.  Ameri- 
can   Smelting    &    Refining    Co., 

46. 
William   Beckford,   146. 
William  Churchill,  271. 
Wm.  F.  McRae,  40S. 
William  H.  Bailey,  329. 
William  H.  Yerkes,  Jr.,  130. 
Wm.  J.  Quillan,  49. 
William   Lindsay,  311. 
William  M.  Hoag,  30,  329. 
Williams,  131. 

Williams  v.   Canton  Ins.  Co.,  81. 
Willie,  107. 
Willkoininon,    287. 


CASES   CITED 
[The  figures  refer  to  pages] 


553 


Wilmington,  15. 

Wilson      v.     Charleston      Pilots' 

Ass'n,  40. 
Wilson  v.  Pilots'  Ass'n,  40. 
Winnie,  276. 
Wood  v.  Keyser,  176. 
Wood  v.  Phoenix  Ins.  Co.,  50. 
Wood  v.  Pleasants,  65. 
Woodall  v.  Dempsey,  343. 
Woodropsims,    SOS. 
Woodruff  v.   One  Covered   Scow, 

15. 
Woodside   v.   Canton    Ins.   Office, 

52,  S4. 
Wope  v.  Hemenway,  25. 
Wordsworth,  45. 
Work  v.  Leathers,  62. 
Worms  v.  Storey,  172. 
Worthington,   102.  107,  300. 
Wortman  v.  Griffith,  20. 
Wrestler,  274,  290. 


Wyoming,  3S2. 

W.   &   C.   T.   Jones    S.    S.   Co.    v. 
Barnes-Ames  Co.,  175. 


Xantho,  166. 


Yang-Tsze  Ins.  Ass'n  v.  Furness, 

Withy  &  Co.,  282. 
Yankee,   106.   210. 
Yarmouth,    2S9. 


Zadok,  263,  264. 

Zane  v.   President,  The,  19. 

Zapora.  138. 

Zeta,  19S,  219. 

Zillah  May,  21. 

Zouave,  283. 


INDEX 


[THE  FIGURES   RLFEU  TO  PAGES] 


ABANDONMENT, 

See  Mm  Lie  Insurance. 

ABATEMENT, 

Survival  of  action  for  injuries  resulting  in  death,  222. 

ABDUCTION, 

Remedies  for,  216. 

ACCOUNTS, 

See  Admiralty  Jurisdiction. 

ADMIRALTY  JURISDICTION, 
Extent  of  under  constitution,  9. 

Includes  navigable  waters,  whether  tidal  or  not,  10,  195. 
Test  of  navigability,  11. 
Includes  canals,  13,  195. 
Lakes  wholly  within  state,  13. 
Includes  the  simplest  craft,  as  scows,  dredges,  pile  drivers,  etc. 

14. 
Does  not  include  floating  docks  permanently  fixed,  14. 
Nor  buoys,  16. 
Quaere  as  to  rafts,  17. 
Test  of,  in  contract  and  tort  respectively,  18. 
None  over  mere  partnership,  20. 
None  over  mortgages  on  ships,  21. 
None  over  mere  accounts,  21,  400. 
None  over  preliminary  contracts,  22. 
Extent  of,  over  wharfage,  22. 
Extent  of,  over  watchmen,  22. 
Over  contracts  of  seamen,  23. 
Over  master's  claim  for  wages,  28. 
Over  claim's  for  or  against  pilots,  39. 
Over  general   average  contract,  50. 
Over  contracts  of  marine  insurance,  51. 
Over  supplies  and  repairs,  98. 
Over  bottomry,  515. 
None  over  ship  building  contracts,  116,  231. 

Hugiies,Adm.(2dEd.)  (555) 


556  INDEX 

[The  figures  refer  to  pages] 

ADMIRA  LTY  JURISDICTION— Continued, 
Over   stevedore   contracts,    119. 
Over  canal  tolls,  123. 
Over  towage.  131. 
Over   salvage   apportionment,   151. 
Over  contracts  of  affreightment,  156. 
Over  torts,  195,  234. 

Petitory  and  possessory  suits  and  suits  for  partition,  339,  516. 
None  over  equitable  titles,  400. 
Courts  having  jurisdiction,  415. 

ADMIRALTY   LAW, 

Origin  and  history,  1. 
The  English  admiralty,  2. 
Sources,  5. 
Works  of  authority  on,  7. 

ADMIRALTY  RULES, 

Rules  of  practice,  511. 
Fifty-ninth  rule,  320,  530. 
Twelfth  rule,  112. 

ADVANCES, 

Giving  insurable  interest,  53. 
Bottomry  bond  for,  94. 
Priority  of  claims,  3S2. 

See  Bottomry  and  Respondentia,  Supplies  and  Repairs. 
AFFREIGHTMENT, 
Defined,  154. 

Distinguished  from  charter  party,  154. 
Implied  condition   of  seaworthiness,   155. 
Implied   warranty   against  deviation,   156. 
Mutual  remedies  of  ship  and  cargo,  156. 
Lien  for  freight,  how  enforced  or  lost,  156. 
Entirety  of  affreightment  contract,  15S. 
Freight  pro  rata  itineris,  159. 
When  ship  a  common  carrier,  160. 
Bill  of  lading,  161. 

Form  of,  161. 

How   far   negotiable,   162. 

What  conditions  legal  or  illegal,  163. 

Exception  of  perils  of  the  sea,  165. 
The  Harter  act  of  February  13,  1893,  181. 

Purpose  of,  180. 

Applies  only  between  vessel  and  shipper,  183. 

Applies  to  domestic  and  foreign   vessels,  187. 

Liability  for  Improper  loadii/g  or  delivery,  but  not  for  negli- 
gent navigation,  188. 

Effect  of  unseaworthiness  under,  190. 


index  557 

LThe  figures  refer  to  pages] 

AFFREIGHTMENT— Continued, 

Burden  to  prove  seaworthiness,  191. 
Port-holes,  191. 

Validity  of  stipulations  not  mentioned  in  act,  193. 
Necessity  of  stipulating  against  absolute  liability  for  sea- 
worthiness, 193. 
See  Charter  Parties. 

AMENDMENTS, 

See  Pleading  and  Practice. 

ANSWER, 

See  Pleading  and  Practice. 
APPEAL, 

Process  of,  41S. 

Time  of  taking,  418. 

Facts,  how  far  reviewed,  419. 

New  evidence  on,  420,  524,  525. 

Record  on,  525. 

ASSAULT, 

Remedies  for,  215,  515. 
See  Torts. 
ATTACHMENTS, 

See  Pleading  and  Practice. 
AVERAGE, 

Particular   average,    .86. 

See  General  Average  Marine  Insurance. 

B 

BAIL, 

In  suits  in  personam,  512,  524. 
Reduction,  513. 

BARRATRY, 

See  Marine  Insurance. 

BILL   OF   LADING, 

See  Affreightment.  • 

BONDS, 

To  release  vessel  from  arrest,  407,  497. 
In   attachment,  512. 

See  Bottomry  and  Respondentia. 

BOTTOMRY  AND   RESPONDENTIA, 
Bottomry  defined,  94. 

Requisites  to  validity  of  bottomry  bond,  96. 
Respondentia,  97. 
Priority  of  claims,  384,  391. 
Remedies  for,  515. 

See  Maritime  Liens. 


558  INDEX 

[The  figures  refer  to  pages] 
BRIDGES, 

See  Torts. 
BUOYS, 

See  Admiralty  Jurisdiction. 

CANALS,  C 

See   Admiralty    Jurisdiction. 
CANAL  TOLLS, 

Maritime  character  of,  123. 

Remedies  for,  123. 

CANCELLATION  CLAUSE, 

See  Charter  Parties. 
CAUSE, 

Proximate  or  remote,  SO,  330. 
CESSER  CLAUSE, 

See  Charter  Parties. 

CHARTER   PARTIES, 

Distinguished  from  affreightment  contracts,  154 
Defined,  166. 

Construed  as  ordinary  contracts,  168 
Special  clauses,   168.  * 

"Return  in  good  order,"  168. 

"With  all  possible  dispatch,"  169. 

"Now  sailed  or  about  to  sail,"  169. 

"1.100  tons  or  thereabouts,"  170. 

"Northern  passage,"  170. 

"Guaranty  of  10,000  grain  quarters."  170. 

"Always  lie  and  discharge  afloat,"  170,  175. 
Conditions  implied, 

Of  seaworthiness,   171. 

Against  deviation,  173. 
Cancellation   clause,    174. 
Loading,  175. 

Demurrage,  175.  • 

Documents  to  be  signed  by  master,  177. 
« !esser  clause,  17S. 

COLLISION, 

When  a  peril  of  the  sea,  76,  166. 

History  of  navigation  rules.  2  15. 

Meaning  of  word,  245. 

Different  systems  of  navigation  rules,  248. 

Judicial  notice  of.  250. 

Effect  of  local   rules  and  customs,  L'49. 

Classes  of  vessels  affected  by  rules,  250. 

What   craft  are  steam  vessels,  251,  426,  446,  469.  479. 


INDEX  559 

[The  figures  refer  to  pages] 

COLLISION— Continued, 

"Under  wav,"  meaning  of,  251,  426,  446,  469. 
Lights  for  vessels,  251,  427,  447,  469.  480. 
When   shown,  251,  427,   447,  469,   4S0. 
Presumptions  against  dark  vessel,  246,  2o2. 
Unincumbered  steamers,  252,  427,  447,  469,  4S0. 
Towing  steamers,  253.  428,  448,  470,  481. 
Special  lights,  254,  42S. 
Sail  vessels,  255,  429,  44S,  471,  4S2. 
Vessels  towed,  255,  429,  44S,  471,  482. 
Small  vessels,  255,  430,  449,  471,  4S2. 
Pilot  vessels,  256,  431,  449,  483. 
Fishing  vessels,  256,  433,  450,  472,  4S3. 
Rafts  and  nondescript  craft,  256,  451,  472,  483. 
Overtaken  vessels,  257,  436,  451,  473,  486 
Flare-up  or  torch  light,  257,  437,  451,  473,  486. 
Anchor  lights,  25S,  437,  472,  482. 
Naval  lights,  437,  452,  459,  473,  483. 
Fog  navigation,  258,  438.  452,  473.  484. 
Signals  required,  258.  43S.  452,  4S4. 
What  constitutes  fog,  260. 

Moderate  speed  required,  262,  439,  453,  475,  486. 
Test  of  speed  as  to  steamers  and  sail  vessels,  -62. 
Precautions  approaching  fog  bank,  265. 
Steering  and  sailing  rules  when  applicable,  265. 
Steering  and  sailing  rules,  26S,  440,  454,  475,  485. 
Origin,  26S. 
P,asis  of,  268. 

Risk  of  collision.  269,  274,  440,  454,  485 
Rules  regulating  sail  vessels,  270,  440   454    475,  485. 
Rules   regulating  steamers    273    440 >    ^     4j 6_  48o. 
The  port  helm  rule,  273,  440,  454,  476,  485. 
Danger  signals,  275,  455,  47S. 
Rounding  bends,  276,  455. 
The  crossing  rule.  277,  441,  457,  4<6.  4S6 
Rule  regulating  steam  and  sail,  27S,  441.  4o7,  476   486. 
Steam  may  assume  sail  will  keep  course,  279. 
The  wide  berth,  280. 
Error   in   extremis,  2S0. 
Rule  as  to  vessel  having  right  of  way.  281,  441,  457,  476, 

4S6. 
Crossing  ahead,  2S3,  442,  4o7. 
Stop  and  back  rule,  284,  442,  457,  476    4S6. 
Rule  as  to  overtaking  vessels,  2S6,  44-,  4o,.  4<i>,  »«». 
Narrow  channel  rule,  2SS,  443,  458,  47,. 
Narrow  channel  defined,  289. 


500  INDEX 

[The  figures  refer  to  pages] 

COLLISION— Continued, 

General  prudential  rule.  291,  443,  45S,  478,  486. 

Sound  signals,  296,  443,  458,  477. 
General  precaution  rule,  296,  444,  459,  478,  486. 
Lookouts,  296,  444,  459,  478,  487. 
Anchored  vessels,  299. 
Anchoring  in  channels,  300,  489. 
Collisions  with  wrecks,  303. 
The  "stand-by"  act,  305,  493. 
Distress  signals,  444,  459. 
The  international  rules,  426. 
The  coast  and  inland  rules,  445. 

Dividing  lines  between  international  and  inland  rules,  247,462. 
The  lake  rules,  46S. 
The  Mississippi  valley  rules,  479. 
Remedies,  515. 

Bringing  in  joint  tort-feasors.  320,  530. 
See  Damages. 

CONTRACTS, 

Nature  as  test  of  jurisdiction.  18. 
CONTRIBUTION, 

See  Damages;  General  Average. 

CONTRIBUTORY  NEGLIGENCE, 

See  Death  Injuries;   Torts. 
COSTS, 

In  collision  cases  of  mutual  fault,  318. 
How  far  discretionary  in  admiralty,  414. 
Suits  in  forma  pauperis,  415,  505. 
Stipulations  for,  51S. 

D 

DAMAGES, 

In  personal  injury  cases,  221,  243. 
In  collision  cases,  243,  308. 
Negligence  essential,  308. 
Inevitable  accident,  309. 
One  alone  in  fault.  312. 
Both  in  fault,  divided,  312. 

Origin  of  rule  of  division,  315. 

Rights  of  third  parties  when  both  in  fault,  318. 
Contribution  between  colliding  vessels,  320. 

Suit    against   both,  320. 

Bringing  in  vessel  not  party,  320,  530. 

fndependent  suit.  321. 
Measure  of.  when  loss  total,  326. 
Measure  of,  when  loss  partial,  328. 

1  demurrage,  how   estimated,  32S. 


»  INDEX  5G1 

[The  figures  refer  to  pages] 

DAMAGES— Continued. 

Interest  discretionary,  329. 

Repairs.  330. 
Increased  damages  due  to  subsequent  storm,  330. 
Error  in  extremis,  331. 

DEAD  WEIGHT,  167. 

DEATH  INJURIES, 

Common-law  doctrine  as  to  survival,  222. 

Civil-law  doctrine.  223. 

Continental  doctrine,  224. 

English  doctrine.  227. 

Right  of  survival  dependent  on  statute,  in  America,  22S. 

Under  state  statutes,  230. 

Under  acts  of  congress,  236. 
Injury  on  water,  death  ashore,  234. 
Law  governing  such  actions,  242. 
Contributory  negligence  bars  recovery,  243. 
Construction  of  particular  statutes,  244. 

DECREES, 

See  Pleading  and  Practice. 

DEMURRAGE, 

See  Charter  Parties. 

DEVIATION, 

See  Affreightment ;   Charter   Parties ;    Marine   Insurance. 

DISTRESS   SIGNALS, 
Rules,  444,  459. 

DREDGES, 

See  Admiralty  Jurisdiction. 

DRY  DOCKS, 

Sec  Admiralty  Jurisdiction. 


E 

ERROR  IN  EXTREMIS, 
See  Collision :  Damages. 

EVIDENCE, 

Federal    statutes    regulating   competency,    taking    depositions, 
etc..  49S. 
See  Appeal;  Pleading  and  Practice. 
EXECUTION, 

See  Pleading  and  Practice. 

Hughes,Adm.(2d  En.)— 30 


562  INDEX  * 

[The  figures  refer  to  pages] 


FIFTY  PER  CENT.  RULE, 
See  Marine  Insurance. 

FOG, 

See  Collision. 

FOREIGNERS, 

See   Seamen. 

FREIGHT, 

See  Affreightment. 

G 

GENERAL  AVERAGE, 
Denned,  41. 

Antiquity  and  nature,  42. 
Jettison,  42. 

Voluntariness  of,  stranding,  43. 
Requisites  of,  44. 
Unseaworthiness,  49. 
May  stipulate  for  though  loss  due  to  negligent  navigation,  49, 

186. 
Contribution,  47. 
Priority  of  claims,  382. 
See  Maritime  Liens. 

H 

HARTER  ACT, 

See  Affreightment ;  General  Average. 

HATCHWAYS, 

Duty  as  to,  211. 

HUSBAND  AND  WIFE, 
Injuries  to  wife,  216. 

HYPOTHECATION, 
Of  cargo,  97. 
Of  vessel,  94. 
Remedies,  515. 

See  Bottomry  and  Respondentia. 


ILLEGAL  TRAFFIC, 

See  Marine   Insurance. 

INEVITABLE   ACCIDENT, 
See  Damages. 

INSURANCE, 

See   Marine   Insurance. 


INDEX  503 

[The  figures  refer  to  pages] 


JETTISON, 

See   General  Average. 

L 

LAKES, 

See  Admiralty  Jurisdiction. 

LIBEL, 

See  Pleading  and  Practice. 

LIEN, 

Meaning  of  in  admiralty,  94. 

LIGHTS, 

See  Collision. 

LIMITATION  OF   LIABILITY, 
Origin  of  doctrine,  345. 
Federal  legislation  on,  346,  494. 

Policy  of,  347. 
Fires,  liability  for,  348,  494. 
Contract  debts,  351,  497. 
Constitutionality  of  acts,  238,  353. 
Who  may  claim,  354. 

Liabilities  against  which  limitation  may  be  claimed,  355. 
Privity  or  knowledge  of  owner,  357. 
Unseaworthiness,  357. 
Knowledge  of  officer  or  employs,  360. 
Voyage  as  the  unit,  364. 
Liability  of  part  owners,  365. 
Measure  of  liability,  365. 

Estimating  value  of  vessel  and  freight,  365. 
Surrender  of  res  free  from  liens,  366. 
Res  may  include  more  than  one  vessel.  366. 
Damages  from  injuring  vessel,  369. 
Pending  freight,  371. 
Salvage  and  insurance,  372. 
Procedure,  373,  527. 

Time  for  claiming,  373. 
Method  of  claiming,  374,  527. 
Distribution,    375,   529. 

LIMITATIONS, 

Statutes  of,  in  admiralty,  413. 
See  Supplies  and  Repairs. 


5G4  INDEX 

[The  figures  refer  to  pages] 

M 

MAINTENANCE  AND  CURE, 
See  Torts. 

MARINE   INSURANCE, 
Defined,  51. 

Admiralty  jurisdiction  over  contracts  of,  19,  51. 
Insurable  interest  necessary,  52. 
Double  insurance,  54. 

Effect  of  misrepresentation  or  concealment,  55. 
Seaworthiness  implied,  59. 

What  constihites  seaworthiness,  59. 

Burden  of  proof  of  seaworthiness,  62. 

Seaworthiness  in  time  policies,  63. 
Implied  condition  against  deviation,  64. 

Deviation  defined,  64. 

May  deviate  to  save  life,  65. 

Distinction  between  deviation  and  change  of  voyage,  66. 
Implied  condition  against  illegal  traffic,  67. 

Effect  of  violating  revenue  laws  of  another  country,  69. 
The  policy,  71. 

Beginning  and  end  of  risk,  71. 

Restraint  of  princes,  74. 

Perils  of  the  seas,  75,  79. 

Barratry,  77. 

Thefts,  78. 

All  other  perils,  79. 
Doctrine  of  proximate  cause,  SO. 
Extent  of  loss,  S3. 

Actual  total  loss, 
Of  vessel,  84. 
Of  goods,  84. 
Of  freight,  85. 

Constructive  total  loss,  83. 

Partial  loss,  86. 

Particular    average,   86. 

Abandonment,  87. 

Fifty  per  cent,  rule,  87. 

Binding  effect  of  agreed  valuation,  88. 
Underwriter's  right  of  subrogation,  91. 
Sue  and  labor  clause,  92. 

MARINER'S  COMPASS,  424. 

MARITIME  CONTRACTS, 

Defined,  18. 

Seamen's  contracts,  23. 

Marine  insurance,  19,  51. 


INDEX  5G5 

[The  figures  refer  to  pages] 

MARITIME  CONTRACTS— Continued, 
Shipbuilding  contracts,  116,  231. 
Stevedore's  contracts,  119. 
Towage,  131. 
Salvage,  132,  149. 

MARITIME  LIENS, 

Eor  seamen's  wages,  26. 

For  supplies,  repairs,  and  necessaries,  98. 

For  services   of  stevedores,   119. 

For  canal  tolls,  123. 

The  admiralty  lien  explained,  94. 

Priorities  among,  376. 

Relative  rank  according  to  their  nature,  376. 
Seamen's  wages,  378. 
Salvage,    380. 

Materials,  supplies,  advances,  towage,  pilotage,  and  gen- 
eral average,  3S2. 
Bottomry,    384. 

Non- maritime  liens  or  titles,  386. 
Torts,  387. 
Relative  rank  according  to  their  dates,  391. 
Different  voyages,  391. 
Claim  more  immediately  contributing  to  preserve  res, 

393. 
Later  contract  to  tort,  394. 
Two  torts,  394. 
Relative  rank  as  affected  by  suit  or  decree,  397. 
See  Bottomry  and  Respondentia. 
MASTER, 

Right  to  libel  in  rem  for  wages  independent  of  statute,  28. 

Under  state  statute.  29. 
Implied  powers  as  agent,  45,  101. 

See  Ownership  of  Vessels;   Pilotage. 

MATERIAL  MEN. 

See  Supplies  and  Repairs. 

MATERIALS, 

Priority  of  claims,  3S2. 

MISREPRESENTATION, 
See  Marine  Insurance. 

MORTGAGES, 

See  Admiralty  Jurisdiction;  Maritime  Liens. 

N 

NAVIGABLE  WATERS, 
Defined,  11. 
Obstructing  same  by  anchoring,  299,  4S9. 


r»t><;  .  INDEX 

[The  figures  refer  to  pages] 

NAVIGABLE  WATERS— Continued, 
Removal  of  obstructions,  490. 
Destruction   of  grounded   vessels,    491. 
See  Admiralty  Jurisdiction. 

NAVIGATION, 

See  Collision;    Rules  of  Navigation. 

NECESSARIES, 

See  Supplies  and  Repairs. 

NEGLIGENCE, 

See   Affreightment;   Collision;     Damages;     Death    Injuries;    Pi- 
lotage ;   Torts ;   Towage. 

o 

OWNERSHIP  OF  VESSELS, 

Title  vesting  of  during  construction,  'I'M. 
Bill  of  sale,  how  far  necessary,  334. 

Requisites  of,  334. 

Recording  of,  334. 

Registered  and  enrolled  vessels,  335. 
Part  owners  are  tenants  in  common,  '.'>.'>(}. 

No  lien  inter  sese  for  balance  of  accounts,  336. 

When  may  libel  vessel,  337. 

Power  to  bind  each  other,  33S. 

Right  of  majority  to  use  vessel,  338. 

When  minority  may  use  vessel,  339. 

Power  of  admiralty  court  to  sell  for  partition,  339,  516. 

Power  to  remove  master,  340. 

How  far  liable  for  vessel's  debts  or  torts,  341. 
See  Limitation  of  Liability. 


PARTICULAR  AVERAGE, 

See  Marine  Insurance. 

PARTNERSHIP, 

See  Admiralty  Jurisdiction. 

PART  OWNERS, 

See  Ownership  of  Vessels. 

PASSENGERS, 

Right   to   salvage,   139. 
Rights  and  remedies  against  ship.  209. 
See  Torts. 


PERILS  OF  THE  SEAS, 

See  Affreightment;   Marine  Insurance. 


INDEX  5<J7 

[The  figures  refer  to  pages] 

PETITORY  OR  POSSESSORY  SUITS, 
Process,  scope  of,  339,  340,  516. 

PILE  DRIVERS, 

Sec  Admiralty  Jurisdiction. 

PILOTAGE, 

Pilot  defined,  31. 
Validity  of  state  pilot  laws,  33. 
Care  required  of  pilot,  34. 
Supersedes  master  in  navigation,  36. 
Negligence,  liability  of  vessel,  37. 

Liability  of  pilot  association,  38. 
Jurisdiction  of  admiralty  over  claims  for  or  against  pilots,  39, 

217. 
Right  to  salvage,  139. 
Priority  of  claims,  382. 
Remedies,  39,  515. 

See  Maritime  Liens. 

PLEADING  AND  PRACTICE, 

Simplicity  of,  in  admiralty,  309. 

Titles  cognizable,  400. 

Proceedings  in  rem  and  in  personam,  400. 

Binding  effect  of  in  rem,  401. 
Appearance  to  defend  not  a  general  personal  appearance,  401. 
Rules  of  practice,  403,  511. 
The  libel,  403. 

Wbo  may  be  libelant,  404. 

Joinder  of  libelants,  404. 

Stating  part,  404.  517. 

Amendments,  405,  517. 
Cross  libels,  527. 
Process,  406,  511,  512,  513,  514. 
Suits  against  the  United  States,  407,  506. 
Release  of  vessel,  407,  497. 
Appraisements  and  sales,  514,  522. 
Claim,  518. 
Decrees  by  default,  408,  519. 

How  reopened,  408,  522. 
The  defense,  400. 

By  exception,  409,  521. 

By  answer,  409,  5  IS,  524. 

Intervention,  520,  523. 

Garnishees,  521. 

No  replication  necessary,  410,  525. 
The  trial,  410. 

Evidence,  410,  49S,  524,  525. 


568  INDEX 

[The  figures  refer  to  pages] 

PLEADING  AND  PRACTICE— Continued, 

Failure  to  prosecute,  522. 

Attachments,  412,  512. 

Funds  in  court,  521,  522. 

Set-off,  412. 

Limitations,   105,   115,  392,  413. 

Tender,  413. 

Costs,  318,  414. 

.Suits  in  forma  pauperis,  505. 
Sales,  414,  522. 
References,  523. 
Execution,  414,  516. 

Bringing  in  joint  tort  feasor,  320,  415,  530. 
Courts  having  admiralty  jurisdiction,  415. 
Power  to  make  rules,  524. 
Limitation  of  liability,  527. 

See  Appeal. 

R 

RAFTS, 

See  Admiralty  Jurisdiction. 
RESPONDENTIA, 

See  Bottomry  and  Respondentia. 
RULES  OF  NAVIGATION, 

International  rules,  42G. 
Coast  and  inland  rules,  4-15. 
Lake  rules,  46S. 
Mississippi  valley  rules,   479. 
See  Collision. 

SALVAGE, 

Not  a  "necessary,"  108. 
Distinguished  from  towage,  124. 
Doctrine  based  on  public  policy,  132. 
Not  dependent  on  contract,  132. 
Defined,  134. 

Instances  of  salvage  services,  134. 
Nature  of  property,  135. 
Degree  of  risk  necessary,  136. 
Persons  entitled  to  claim,  137. 

The  crew,  138. 

The  pilot,  139. 

The  tug,  139. 

Passengers,  139. 

Government  employes,  140. 
Benefit  to  property  necessary,  140. 


INDEX  5<ii) 

[The  figures  refer  to  pages] 

SALVAGE— Continued, 

The  amount  of  award,  142. 

The  elements  of  the  award,  142. 
Actual  outlays,  142. 
Bounty,  142. 

Professional  salvors,  144. 
Locality  of  service,  145. 
Increase  or  diminution  of  awards,  145. 
Incidents  of  service  as  affecting  award,  146. 
Danger,  146. 
Values  at  risk,  147. 
Skill   shown,   148. 
Misconduct,   148. 
Time  and  labor,  148. 
Result,  149. 
How  far  salvage  contracts  binding,  149. 
Apportionment  of  salvage,  150. 
Averaging  award  on  ship,  cargo,  and  freight,  152. 
Priority  of  lien,  880,  393. 
Remedies  for,  153,  516. 
Act  of  August  1,  1912,  425. 
See  Maritime  Liens. 

SCOWS, 

See  Admiralty  Jurisdiction. 

SEAMEN, 

Defined,  23. 

Contracts  of,  favorably  construed,  24. 

Statutory  provisions,  25. 

Freight  as  mother  of  wages,  25. 

Lien  for  wages,  26,  378. 

Duty  of  obedience,  27. 

Rule  as  to  enforcement  of  claims  against  foreign  vessels,  27. 

Right  to  salvage,  138. 

Torts  against,  204. 

Applicability  of  death  statutes  to,  233. 

Priority  of  claims  for  wages,  178,  393. 

Remedies,  515. 

See  Maritime  Liens. 

SEAWORTHINESS. 

See  Affreightment;    Charter  Parties;    General  Ayerage;    Limi- 
tation of  Liability;    Marine  Insurance. 

SET-OFF, 

See  Pleading  and  Practice. 

SHIP, 

Craft  included,  14. 
Wrongful  seizure,  216. 


570  INDEX 

[The  figures  refer  to  pages] 

SHIPBUILDING, 

See  Admiralty  Jurisdiction. 

SHIP'S  HUSBAND, 

Insurable  interest,  50. 

See  Ownership  of  Vessels. 
SOUND  SIGNALS, 

See  Collision. 

STALENESS, 

See  Supplies  and  Repairs. 
STATE   STATUTES, 

Effect  of  in  admiralty,  29,  33,  110,  116,  208,  230,  392. 
STATUTES, 

Virginia  act  of  1779  establishing  admiralty  courts,  9. 

Act  of  June  23,  1910,  regulating  liens  for  necessaries,  99. 

1  latter  act  of  February  13,  1893,  181. 

Death  statute  of  March  30,  1920,  240. 

"Stand-by"  act  of  September  4,  1890,  305,  493. 

Rev.  St.  §  4170  as  to  form  of  bill  of  sale.  334. 

Rev.  St.  §  4192  as  to  recording,  334. 

Rev.  Sr.  §  4141  as  to  place  of  registry,  335. 

Rev.  St.  §  4312  as  to  enrollment,  335. 

Rev.  St.  §  4250  as  to  removal  of  master,  340. 

Salvage  act  of  August  1,  1912,  425. 

International  rules  of  navigation,  426. 

Inland  and  coast  rules  of  navigation,  445. 

Lake  rules  of  navigation,  468. 

Mississippi  Valley  rules  of  navigation,  479. 

Act  of  March  3,  1899,  as  to  obstructing  channels,  489. 

Rev.    St.    §§   4282-42S9   as   to    limiting  liability,    494. 

Act  of  June  26,  1884,  as  to  limiting  liability,  497. 

Rev.  St.  §  941  as  to  bonding  vessels,  497. 

Acts  relating  to  evidence.  498. 

Act  as  to  suits  in  forma  pauperis,  505. 

STEERING  AND   SAILING   RULES, 
See  Collision. 

STEVEDORE, 

Defined,  119. 

.Maritime  nature  of  service,  119. 

Remedies  against  vessel,  120. 

-Must  bave  contract   with   vessel,  122. 

STRANDING, 

See  General  Average. 

STLKOGATION, 

See    Marine    Insurance. 


INDEX  °*' 

[Tlie  figures  refer  to  pages] 

SUB  AND  LABOR  CLAUSE, 

See  Marine  Insurance. 
SUPPLIES  AND  REPAIRS, 
Material  men  defined,  98. 
Lien  implied,  98. 
Act  of  June  23,  1910,  99. 
Presumption  if  owner  present,  101,  110. 
Persons  author"  zed  to  bind  ship,  102. 
Presumption  in  ease  of  chartered  vessels,  103. 
How  lien  waived  or  lost,  105. 
Doctrine  of  staleness,  105,  115,  392. 
Advances,  107. 

Necessaries  defined,  107.  ,mDSti.  vf>csPis    110. 

Validity  of  state  statute  giving  lien  on  domestic  vessels    iiu. 
lit  story  of  and  changes  in   twelfth  admiralty   rule,   112. 
Effect  of  owner's  presence  on  domestic  liens,  116. 
shinbuilding  contracts,  116,  231. 

Effect  on  foreign  vessels  of  state  statutes  giving  lien,  118. 
Priority  of  claims,  105,  382,  393. 
Remedies.  515. 

See  Maritime  Liens. 

T 

TENDER. 

See  Pleading  and  Practice. 

THEFTS, 

See  Marine  Insurance. 

Locality  the  test  of  jurisdiction,  18,  195,  216. 

Waters  included,  196. 

Structures  attached  to  shore  not  included,  197. 

Wharves,  piers,  and  bridges,  198,  202. 

Dry-docks,  196. 

Submarine  cables,  198. 

Must  be  consummated  on  water,  199,  26i. 

Detached  structures,  202. 
TortfarSng  from  relation  of  ship  or  owner  to  crew,  204. 

"Maintenance  and  cure"  doctrine,  204. 

Effect  of  recent  legislation,  20 1. 
Workman's  compensation  acts,  208. 
Torts  to  passengers,  209. 
Torts  to  persons  rightfully  on  ship,  210. 
Ship  not  liable  for  act  of  independent  contractor,  211,  213. 
Imputed  negligence,  214. 
Assaults,   215. 


O'-  INDEX 

[The  figures  refer  to  pages] 

TORTS— Continued, 

Contributory  negligence  as  affecting  right  of  recovery  and  meas- 
ure of  damages,  221. 
Liability  of  owners,  341. 
Priorities  of  claims,  387,  394. 

See  Collision;    Damages;    Death  Injuries;    Maritime  Liens. 
TOWAGE, 

"Not  a  necessary''  defined,  124. 

Distinguished   from    salvage,    124. 

Respective  liability  of  tug  and  tow  to  third  party,  125. 

Relative  duties  of  tug  and  tow,  128. 

Tug  not  a  common  carrier,  129. 

Measure  of  care  required  of  tug.  129. 

For  whose  acts  tug  is  liable,  131. 

Maritime  remedies  for,  131. 

Priority  of  claims,  3S3. 

See  Collision;     Maritime   Liens;    Supplies  and   Repairs. 
TUG, 

See  Towage. 

TWELFTH  ADMIRALTY  RULE, 
History  and  changes,  112. 

w 

WATCHMEN, 

See   Admiralty   Jurisdiction. 
WHARF, 

See  Torts. 
WHARFAGE, 

See  Admiralty  Jurisdiction. 

WORKMAN'S  COMPENSATION  ACTS, 
In  admiralty,  208,  234. 

WRECKS, 

See  Collision. 


WI8T  PUBLISHING  CO.,  PRINTERS,  ST.  PAUL,   MINN. 


LAW  LIBRARY 
UNIVERSITY  OF  CALIFORNIA 

LOS  ANGELES 


,ir  SOUTHERN  REGIONAL  LIBRARY  FACILITY 

AA"  000  770  794    6 


UNIVERSITY  OF  CALIFORNIA  LIBRARY 

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This  book  is  DUE  on  the  last  date  stamped  below. 


NOV  l  7  1968 


Form  L9— Series  444 


